By Zhao Xiaohai and Guo Ye*

Key Words: case guidance system; guiding cases in civil and commercial matters; application in judicial proceedings

The Supreme People's Court had issued a series of regulatory documents relating to the case guidance system as of September 30, 2016, in an effort to regulate the discretion of judges and achieve unity of justice. Among them, the Notice of the Supreme People's Court on Issuing the Specifications for Preparing Civil Adjudications by the People's Courts and the Style of Civil Litigation Instruments issued on June 28, 2016, further specified that“Where a case pending trial is similar to a guiding case issued by the Supreme People's Court in terms of basic facts and application of law, the guiding case shall be quoted in the reasons part of adjudication, with the guiding case number and key points of judgment stated”but "no guiding case maybe cited as a basis for adjudication.”[1]As of September 30, the Supreme People's Court had issued 14 groups of guiding cases, of which 42 are in civil and commercial matters. For a profound understanding of the specific issuance and application of these guiding cases in civil and commercial matters, this paper is to make extensive and in-depth discussion and analysis from the perspective of big data analysis, with the “Judicial Case Database of pkulaw.cn” as the data source.

The 14 groups of guiding cases, totaling 69 cases, issued by the Supreme People's Court include 42 cases in civil and commercial matters. From various angles, this paper analyzes the issuance and characteristics of the 42 guiding cases in civil and commercial matters.

1. Issuance

(1) Rising frequency of issuance

Cases in civil and commercial matters can be found in all the groups of guiding cases issued by the Supreme People's Court but the ninth group. From 2011 to 2015, the number of guiding cases in civil and commercial matters increased each year. There are two in the first group of guiding cases issued in 2011, and the number rose to 12 in 2015 but decreased to only seven in 2016.

(2) Unfixed issuance date

While guiding cases tend to be issued more frequently, the issuance date is not fixed. The dates of issuance of guiding cases in civil and commercial matters by the Supreme People’s Court are rather scattered in January, April, May, June, September, November, and December.

(3) Cases mainly closed from 2009 to 2015

Among the 42 guiding cases in civil and commercial matters issued by the Supreme People's Court, a relatively small number of cases, only ten cases, were closed before 2009, accounting for 23.81%; and the other 32 cases, accounting for 76.19%, were closed after 2009, mainly between 2009 and 2015.

(4) No significant pattern in terms of issuance and closing dates

The closing dates of guiding cases in civil and commercial matters issued by the Supreme People's Court are all earlier than the issuance date. Guiding cases 66 to 68 in the 14th group were all closed in October 2015 and issued in September 2016, indicating an interval of 11 months. Guiding case 52 in the tenth group was closed on July 13, 2004, and issued on April 15, 2015, showing an interval of more than ten years.

2. Case characteristics

(1) The causes of civil action are mainly contract disputes, and the causes of action in the category of intellectual property rights are relatively evenly distributed

Of the guiding cases in civil and commercial matters issued by the Supreme People's Court, 32 are in civil category, and ten are in the category of intellectual property rights. In terms of the types of causes of action, contract disputes are dominating, in 13 cases, followed by actions for objection to enforcement (four cases), disputes over tort liability (three cases), company disputes (three cases), and maritime disputes (two cases). Cases in the categories of disputes over common interest developments, divorce disputes, succession disputes, labor disputes, insurance disputes, special maritime proceedings, and recognition and enforcement of court judgement and arbitral awards are the fewest, with only one for each.

There is a significant rise in the number of guiding cases in the category of intellectual property rights in recent years. Of the ten cases in this category among the guiding cases in civil and commercial matters issued by the Supreme People's Court, the two groups of guiding cases issued in 2015 include six, which is 50% of the total guiding cases issued that year. In terms of specific causes of action, there are two cases involving disputes over copyright, patent right, and trademark right respectively, one involving counterfeit product disputes, and three involving other intellectual property rights, showing the characteristic of relatively even distribution of causes of action.

(2) Key points of judgment prioritize substantive guidance

The guiding role of the guiding cases includes substantive and procedural guidance. Among the 42 guiding cases in civil and commercial matters issued by the Supreme People's Court, there are 36 with key points of judgment involving substantive issues, accounting for 86%, while there are only six involving procedural issues, accounting for 14%.

(3) Cases mainly from the Supreme People's Court, Shanghai, Jiangsu, and Beijing

The major sources of guiding cases in civil and commercial matters include the Supreme People's Court and ten provinces and cities. The Supreme People's Court contributed most cases (12), followed by Shanghai (nine), Jiangsu (seven), and Beijing (three). The other provinces each provided not more than two cases.

(4) Supreme People's Court and higher people's courts as major courts of trial

The courts trying the guiding cases in civil and commercial matters are mainly general courts, and only one specialized court is the trial court. Higher people's courts tried most of the cases, accounting for one third of the total, followed by the Supreme People's Court, intermediate people's courts, and basic people's courts. Specialized courts contributed few guiding cases in civil and commercial matters (only one out of 42 cases).

(5) Trials on appeal as main procedures

The 42 guiding cases in civil and commercial matters issued by the Supreme People's Court were not only under trial procedures but also enforcement procedures. Among the cases under trial procedures, most are tried on appeal, totaling 23, followed by cases tried by courts of first instance (seven), and cases retried (five). In addition, there are four enforcement cases, one supervision case, and two cases of other types.

(6) Judgments and rulings as major types of instruments

Among the 42 guiding cases in civil and commercial matters issued by the Supreme People's Court, judgments and rulings are the major forms of instruments, and other instruments are rare. There are mainly three types of instruments: judgment, ruling, and enforcement supervision reply. Judgments account for 74%, the highest, followed by rulings (24%) and enforcement supervision replies (around 2%).

This paper uses the “Judicial Case Database of pkulaw.cn” as the data source in order to ensure the ity and accuracy of data source, and intends, on the basis of data statistics and comparative analysis of the application in judicial proceedings of guiding cases in civil and commercial matters, to summarize the pattern and characteristics of the specific application of cases.

1. Statistics and analysis of application

(1) Overview

Among the 42 guiding cases in civil and commercial matters issued by the Supreme People's Court, 20 cases have been applied, and 22 have not, accounting for 47.6% and 52.4% respectively. About half of the guiding cases have been applied in judicial proceedings.

Guiding cases already applied include cases 1, 2, 7, 8, 9, 10, 15, 17, 18, 19, 23, 24, 25, 29, 33, 34, 45, 46, 47, 53.

Guiding cases so far not applied include cases 16, 20, 30, 31, 35, 36, 37, 48, 49, 50, 51, 52, 54, 55, 56, 57, 58, 64, 65, 66, 67, 68.

(2) Individual cases

Twenty guiding cases in civil and commercial matters have been applied in judicial practice, that is, in 370 cases in total. Guiding case 24, as the most frequently applied case, was applied for 165 times, followed by guiding cases 15, 23, 9, 1, 8 and 19 as applied for 42, 33, 31, 23, 19 and 15 times respectively. The other guiding cases were applied at a relatively low frequency.

(3) Distribution of causes of action

Guiding cases in civil and commercial matters issued by the Supreme People's Court have been extensively applied to various causes of action, including 49 types of causes of action such as sale contract disputes, brokerage contract disputes, and disputes over liability for motor vehicle traffic accidents. The disputes over liability for motor vehicle traffic accidents are the most causes of action, in a total of160 cases, followed by sale contract disputes (44 cases), brokerage contract disputes (22 cases), company dissolution disputes (19 cases) and private lending disputes (14 cases). There is relatively less application to other causes of action.

2. Comparative analysis of application cases and guiding cases

Though the above data analysis and after a basic understanding of the application in judicial proceedings of guiding cases in civil and commercial matters, this paper is to use the method of comparative analysis to analyze the cases and their specific application in terms of regional distribution, court levels, and legal procedures.

(1) Regional distribution

(a) Regions which have contributed guiding cases tend to attach more importance to the application

Guiding cases in civil and commercial matters are mainly from the Supreme People's Court and ten provinces and cities, including Shanghai, Jiangsu and Beijing, and have been applied in relatively extensive regions, involving 30 provinces including Zhejiang, Guangdong, Shandong, and Jiangsu. Eight out of 12 provinces and cities with more than ten application cases have contributed guiding cases, and attached more importance to the application, while more than ten provinces and cities, including Guizhou, Guangxi and Shanxi, rarely apply guiding cases to guide trial practice.

(b) Regions which have not contributed guiding cases gradually attach importance to the application of guiding cases

While the guiding cases are mainly from regions with developed economy in east China, the application of the cases is not limited to such regions. Twenty one provinces, including Guangdong, Henan, Hubei, Hebei, Jilin, Liaoning, Hunan, Jiangxi, Inner Mongolia, Guangxi, Gansu, Ningxia, Xinjiang, Shanxi, Yunnan and Guizhou, have not contributed any guiding cases but all have applied guiding cases in trial practice, and their application cases reached 171, accounting for 46.3%.

(2) Court levels

(a) General courts attach more importance to the application of guiding cases than specialized courts

The courts which tried the guiding cases issued by the Supreme People's Court include general courts and specialized courts. Nevertheless, in trial practice, the courts which applied guiding cases are mainly general courts, and few specialized courts applied the guiding cases in practice (only one case).

(b) Basic and intermediate people's courts apply guiding cases more frequently

Basic and intermediate people's courts applied guiding cases more frequently, and the application rates are 32.6% and 60.9% respectively, followed by higher people's courts with an application rate of 5.08%. The Supreme People's Court, at the highest level, has only applied the guiding cases in judicial practice in only four cases so far. In trial practice, guiding cases have fully played their guiding role in basic and intermediate people's courts, but are applied less frequently by higher people's courts, the Supreme People's Court, and specialized courts.

(3) Legal procedures

(a) The application cases were under relatively extensive legal procedures

The legal procedures involved in application cases are basically consistent with those in the guiding cases in civil and commercial matters issued by the Supreme People's Court, including trial procedures and enforcement procedures, with the former as the main procedures. Among the 370 application cases, there are 363 cases under trial procedures and only four cases under enforcement procedures, accounting for 0.1%. There are also two cases under other procedures and one case under supervision procedures in the guiding cases in civil and commercial matters of trial procedures issued by the Supreme People's Court, while, in the application cases, there are three cases under other procedures and no case under supervision procedures.

(b) The trial procedures in the application cases are mainly original trial and final appeal procedures

Among the 42 guiding cases in civil and commercial matters issued by the Supreme People's Court, there are 30 cases under original trial and final appeal procedures, accounting for 71%. The trial procedures in the 370 application cases are also mainly original trial (128 cases) and final appeal (215 cases) procedures, accounting for 92.7%. In terms of proportion, the latter was higher than that of guiding cases in civil and commercial matters issued by the Supreme People's Court.

3. Application patterns

(1) Time of first application

The time of first application is the time when a guiding case is firstly cited in trial practice after issuance by the Supreme People's Court. Among the 20 guiding cases in civil and commercial matters already cited in judicial practice, except for guiding cases 1[2], 8[3] and 24[4], 17 guiding cases were first applied after their issuance, more specifically, within one to 13 months after issuance.

In view of the general tendency of application, the interval between the time of first application and the issuance date of guiding cases is narrowing. It is worth mentioning that guiding case 2, as issued by the Supreme People's Court on December 20, 2011, was first applied on January 5, 2012, representing an interval of only 16 days. It may be presumed that as new guiding cases are issued, they will be applied in trial practice at an accelerating pace and in a broader scope. It also shows an increasingly guiding role of guiding cases in trial practice.

(2) Persons applying guiding cases

The persons applying guiding cases are persons first citing guiding cases in litigation, mainly including judges, prosecutors, parties, and applicants.

(a) Persons applying guiding cases vary but are mainly judges

The persons applying guiding cases vary greatly in trial practice, including but not limited to judges, plaintiffs, defendants, appellants, appellees, applicants, and respondents. Judges applying guiding cases account for 30%, the highest; appellants 28%; plaintiffs, appellees, defendants, and others, respectively 15%, 15%, 5% and 5%; and applicants and respondents represent a very small part.

(b) Nonjudges more tend to cite guiding cases

Based on whether the person first citing a guiding case is a judge, citation may be divided into citation by judges and citation not by judges. Among 370 application cases, citation by judges makes up only 30%, and citation not by judges accounts for 70%. Cases where judges first cited guiding cases are far fewer than those where persons other than judges first cited guiding cases. It means in a sense that judges rarely cite guiding cases in adjudication, while other persons more tend to cite guiding cases to support their claims and protect their personal interests.

(c) The applied parts of guiding cases

As required by the Supreme People's Court for the structure of guiding cases in civil and commercial matters, each guiding case consists of seven parts: title, key words, key points of judgment, relevant legal provisions, basic facts, judgment, and judgment's reasoning. When judges, public prosecutors, or the parties cited guiding cases in trials, key points of judgment were the most cited, accounting for 66% of all citations, while basic facts 31%. Cases with similar basic facts accounted for 29%, while cases with different basic facts just 2%. In addition, references to the judgment's reasoning have appeared in case trials, accounting for 3%.

(4) Application expression

(a) Expression of the application of guiding cases in civil and commercial matters mainly involves six elements

In judicial practice, when a judge or any other person cites a guiding civil or commercial case in trial, there is almost no unified and fixed expression mode. There is no mandatory provision in the law, creating a relatively relaxed expression environment. Generally, it suffices as long as the litigation instrument clearly indicates which guiding case is cited.

Though the modes of expression of the application of guiding cases in civil and commercial matters vary, this paper has discovered by extensive analysis that no matter which mode is adopted, an expression more or less involves six elements: issuer, issuance date, issuance group number, guiding case number, title of guiding case, and key points of judgment. Through research, it may be basically determined that the expression of application of guiding cases in civil and commercial matters mainly involves these six elements.

(b) Issuer, guiding case number, and key points of judgment appeared most frequently in the expression of application of guiding cases in civil and commercial matters

After data statistics and research on the 370 samples, it is discovered that the six elements vary in the frequency of application and that issuer, guiding case number, and key points of judgment are the most frequently applied elements. Issuer was cited most frequently, for 363 times, followed by guiding case number for 262 times and key points of judgment for 241 times. In addition, issuance date, guiding case number, and issuance group number were cited for 97, 92 and 85 times respectively.

(c) The mode of expression of application is not fixed but the mode of "issuer + guiding case number + key points of judgment" is the main expression of three elements

By the number of elements involved in the expression, the expression may be divided into single element expression, double element expression, three-element expression, four-element expression, five-element expression and six-element expression[5]. Through statistics and analysis of the 370 civil and commercial application cases, it is discovered that three-element expression was most frequently used, for 120 times, and the mode "issuer + guiding case number + key points of judgment" was used for 65 times, followed by double element expression for 106 times and four-element expression for 80 times.

(d) It is rare for judges to cite both guiding case number and key points of judgment in the reasons part of their judgments

Article 11 of the Detailed Rules of the Supreme People's Court for the Implementation of the Provisions on Case Guidance provides that: "In the process of handling a case, the case handling personnel shall consult relevant guiding cases. Where any relevant guiding case is quoted in the written adjudication, the guiding case number and key points of judgment shall be quoted in the reasons part of adjudication." The Notice of the Supreme People's Court on Issuing the Specifications for Preparing Civil Adjudications by the People's Courts and the Style of Civil Litigation Instruments further provides that: "Where a case pending trial is similar to a guiding case issued by the Supreme People's Court in terms of basic facts and application of law, the guiding case shall be quoted in the reasons part of adjudication, with the guiding case number and key points of judgment stated" but "no guiding case may be cited as a basis for adjudication." As one may see, the Supreme People's Court has developed specific provisions on the mode of expression by the judges. Out of the 370 data samples to which guiding cases have been applied, there are 101 cases in which judge actively cited the guiding cases. There are 47 out of the 101 case samples conforming to the aforesaid provisions, while 53.6% of them lack conformity. The data statistics include cases before the aforesaid Detailed Rules took effect, but in judicial practice, citation by judges of guiding cases without strict conformity to the Detailed Rules remains to be seen.

(5) Application results

By whether judges expressly cite guiding cases to explain reasons when adjudicating cases, citations may be divided into explicit citations[6] and implicit citations[7]. Among the 370 application cases, there are 141 cases of explicit citations by judges and 229 of implicit citations by judges. This paper is to only analyze the results of explicit citations by judges to ensure the accuracy of research results because implicit citations by judges are relatively obscure.

(a) A vast majority of guiding cases actively cited by judges were applied by reference

Among the 141 cases explicitly cited, there are 101 cases actively cited by judges and 40 passively cited by judges. Where guiding cases are applied by reference, active citations by judges are dominant, and in 97 out of 111 such cases, judges actively cited guiding cases. Among the cases of passive citations by judges, there are only 14 cases in which judges confirmed and applied by reference in trials; and among the remaining 26 cases, there are 24 in which judges responded but refused to apply by reference, and there are two in which no explanation was made as to whether a guiding case was applied by reference. As one may see, in those cases of explicit citations, the rate of application by reference through active citations by judges is as high as 96%, but in very limited cases, judges actively cited but did not apply by reference guiding cases because the facts or key points of judgment of the guiding cases were not applicable to their cases, on which such judges made specific explanations. The rate of application by reference through passive citations by judges is lower (less than 60%) as the facts or key points of judgment were different, on which judges made specific responses. For a small part of passive citations, the judgment's reasons part was unclear as to whether application by reference was made, but such cases were rare.

(b) Key points of judgment and basic facts are important factors for judges to determine application by reference

In explicit citations, the application results are: application by reference, no application by reference, and no explanation. Application by reference was made through both active and passive citations in a total of 111 application cases. Among active citations, there are 82 based on similar key points of judgment and 15 based on similar basic facts. Among passive citations, there are 11 based on similar key points of judgment and three based on similar basic facts. As one may see, the main reason for judges to apply guiding cases by reference in trials is similarity in terms of key points of judgment or basic facts.

No application by reference was made only in certain passive citations, that is, in 16 cases because of differences in key points of judgment and in eight cases where the judges believed that the facts were not similar. The main reason for judges not to apply guiding cases by reference in trials is differences in terms of key points of judgment or basic facts. It is also true when no explanation was made, where the consideration of key points of judgment and basic facts was involved.

In order to further explore the application of guiding cases, this paper is to take guiding case 24, as applied most frequently, as an example to analyze the substantive application from multiple perspectives.

Guiding case 24 of "Rong Baoying v. Wang Yang and Jiangyin Branch of Alltrust Insurance Co. Ltd. for dispute over liability for a motor vehicle traffic accident" is a case in the sixth group issued by the Supreme People's Court on January 26, 2014. Before its issuance, there were different theories and practices on victims in special physical conditions in tort cases. The handling of traffic accident torts in practice was inconsistent and much depended on judges' discretion. The eggshell skull rule[8] was introduced from the Anglo-American law system to such tort cases after the case was issued, that is, if there is no fault on the part of the victim in an traffic accident, the impact of the victim's physical conditions on the resulting damage is not a statutory circumstance which may mitigate the liability of the tortfeasor, which has, to some extent, unified theories and practices. In practice, the specific applications and tendency of application of guiding case 24 are summarized as follows:

1. Overview of application cases

(1) Legal relationship in traffic accident torts as the subject matter of litigation

Guiding case 24 involves dispute over liability for a motor vehicle traffic accident, with a (motor vehicle) tort legal relationship as the subject matter of litigation. As of September 30, 2016, the guiding case had been applied in 165 cases in judicial practice. The subject matters of litigation mainly included two: legal relationship in tort and in contract. Legal relationship in tort is involved in 156 cases, accounting for around 94.5%, and there are only nine cases involving legal relationship in contract and mainly in insurance contract. In cases involving legal relationship in tort, despite differences in the specific types of torts, traffic accident tort cases account for about 94% of all tort cases.

(2) Victims are diversified and electric bicycle riders are new types of victims

The victim in guidance case 24, a traffic accident tort case, was a pedestrian, but the victims in the 165 application cases were not limited to pedestrians. Except patients, the vast majority of victims were parties to traffic accidents. The ratios of electric bicycle riders and pedestrians as victims are both as high as 29%, and the ratios of motorcycle and bicycle riders as victims are also relatively high.

2. Analysis of applied parts of the guiding case

It is discovered through the analysis of the 165 cases to which guiding case 24 has been applied that their subject matters are not limited to legal relationship in tort, but all the disputes arose out of torts. For this reason, this paper is to explore the pattern and trend of its application from the perspective of common characteristics by comparison with guiding case 24.

(1) It remains uncertain whether a determination of liability for a traffic accident is the basis to judge the fault of a victim

The key points of judgment in guiding case 24 state that: "Where a victim in a traffic accident is not at fault for the accident, the effect of the victim's physical condition on the harm resulting from the accident is not a statutory mitigating circumstance for the liability of the tortfeasor." Clearly, its application depends on the fact that the victim is not at fault. That a victim is not at fault means that no harm occurs or expands due to the fault of the victim. An objective standard should be adopted when the fault of a victim is determined, that is, the due attention paid by a reasonable and prudential person to his life or property interests is used as the standard to judge the fault of the person and the extent of fault. It should be also true to traffic accident torts, but the ones making such determinations are particular and generally the traffic ities.

For disputes over traffic accident torts, the liability determination conclusions of traffic ities mainly fall into five categories: no liability, secondary liability, equal liability, primary liability, and full liability. Based on the aforesaid theoretical analysis, as far as a victim is concerned, only when no liability on his part is determined does it indicate no subjective fault on his part and a possibility of application of guiding case 24 by reference. The other four types of liabilities mean that the victim is at certain fault subjectively, and thus the precondition for application of guiding case 24 by reference is not satisfied, which, however, is not already true in practice. Except no liability and full liability, even if the victim was determined to assume secondary liability, equal liability, or primary liability, there were still cases where guiding case 24 was applied by reference.

(2)The resulting damage is diversified for victims' special physical conditions

Victims' special physical conditions are conditions unlike those of normal and healthy persons, existing to affect physical health, which are generally not manifested as symptoms or remain stable as symptoms but may cause damage, expansion of damage, or worsened damage under certain conditions when intervened by external factors which generally have no adverse or serious impact on healthy persons, that is, the damage exceeds expectations by ordinary persons. [9]In guiding case 24, the special physical condition of the victim, osteoporosis, caused the increased probability of fractures in traffic accidents.

Victims' special physical conditions, though various, may fall into four categories: existing disease, congenital disability, physical degeneration, and others. Existing diseases as accounted for 52%, the highest, followed by other physical conditions, which are physical conditions not specified in application cases. As individuals' special physical conditions are one of the reasons for damage, the varying special physical conditions inevitably lead to diversified damage. Damage includes death, disabilities at various levels, and injuries not resulting in disabilities. According to statistics, there were 119 cases of disabilities among the 165 application cases, accounting for about 72%, followed by death. There are just three cases of injuries not resulting in disabilities, just 1.8%.

(3) Degree of contribution of trauma ceases to play a role in traffic accident dispute cases

The concept of degree of contribution of trauma was first mentioned by Japanese scholar Tomio Watanabe and was gradually adopted in practice. In 2002, Article 49 of the Regulation on the Handling of Medical Malpractices provided that the relationship between the injury caused by a medical malpractice and the patient's pre-existing conditions should be considered in medical malpractice compensation. Later, China's forensics community borrowed the concept and introduced it into the evaluation of disabilities. [10]As there was no progress in China's legislation on special physical conditions, in trial practice, reference could only be made to the aforesaid provisions in similar cases, and the special physical conditions of victims were considered one of the causes to determine the final amount of compensation by the tortfeasor. Consequently, before guiding case 24 was issued, China's courts mostly followed "the course of the Mean," and apportioned damage between defendants and plaintiffs in special physical conditions as per certain proportions. However, things have considerably changed since the guiding case was issued.

The judgment's reasoning in guiding case 24 is that: "Where a victim in a traffic accident is not at fault for the accident, the effect of the victim's physical condition on the harm resulting from the accident is not a statutory mitigating circumstance for the liability of the tortfeasor." It shows that China has expressly introduced the eggshell skull rule in respect of special physical conditions, that is, a tortfeasor should be liable for expanded damage and his liability cannot be mitigated by the concurrence of special physical conditions and the tortious act. In 97 application cases in which reference was made to guiding case 24, even if the degree of contribution by a tortfeasor was between 10% and 30%, he finally assumed full liability because the victim in special physical conditions was not at fault. In 39 application cases, the degree of contribution was never mentioned, accounting for 40.2%. It may be inferred that the concept of degree of contribution has gradually lost favor in traffic accident dispute cases, and same judgments can be made by reference to guiding case 24 without applying for forensic identification and evaluation.

3. Application modes

(1) There is a tendency in application cases to directly quote a guiding case in the judgment's reasons part on the basis of analysis of causation

It is discovered after careful analysis of guiding case 24 that its judgment's reasoning mainly includes: first, whether there is a legal causal relationship between the traffic accident and the damage caused; second, whether there is a causal relationship between personal physical conditions and the damage caused; third, whether personal physical conditions are a statutory cause for liability mitigation; and fourth, analysis and discussion of the faults of both parties.

Compared with guiding case 24, the judgment's reasoning in application cases still focuses on the legal causal relationships, including the causal relationship between traffic accidents and damage caused and that between personal conditions and damage caused. Of the 165 application cases, 126 focus on the former, accounting for roughly 76%, and 54 focus on the latter, about 32%. There is overlapping. In addition, there is exposition and analysis of the personal physical conditions and the degree of fault.

(2) It is not necessarily to cite the relevant legal provisions for deciding the guiding case as a judging basis of application cases

Judging basis is the law and the serial numbers of its provisions on the basis of which a judge renders a specific judgment, while the relevant legal provisions for deciding a guiding case are the law and the serial numbers of its provisions closely related to key points of judgment and a part of the structure of the guiding case. The scopes of the two concepts are different. There are two relevant legal provisions for guiding case 24: Article 26 of the Tort Law of the People's Republic of China and paragraph 1 (2), Article 76 of the Road Traffic Safety Law of the People's Republic of China. The judging basis of application cases is not limited to that.

It is discovered upon research that of the 165 application cases, there are 34 cases in which the aforesaid two articles for deciding guiding case 24 were both cited and the rest cited one of the two or other provisions. Cases in which the judging basis is paragraph 1 (2), Article 76 of the Road Traffic Safety Law of the People's Republic of China are the most, totaling 103, accounting for 62.4%, followed by cases with Article 26 of the Tort Law of the People's Republic of China as the judging basis, totaling 48, accounting for 29.1%. There is certain overlapping. In addition, there are some application cases citing Article 7 of the Provisions of the Supreme People's Court on Case Guidance as the judging basis, totaling 11, at a small percentage.

(3) The judgments in application cases were mainly rendered by reference and no response is expected to change

Article 7 of the Provisions of the Supreme People's Court on Case Guidance provides that: "The people's courts at all levels shall try similar cases by reference to the guiding cases issued by the Supreme People's Court." It is discovered upon research that reference was made to guiding case 24 in most similar cases after 2014, and for differences in the findings of fact, no reference was made in certain cases.

Among the 165 application cases, there are 97 cases in which judgments were made by reference to guiding case 24, accounting for 59%; there are only 13 cases in which judgments were not so made, accounting for only 8%, and the main reason is the differences in the findings of fact; and in the remaining 55 application cases, the citations were made by nonjudges, and judges didn't respond in judgments for various reasons. Nevertheless, with the issuance of the Detailed Rules for the Implementation of the Provisions of the Supreme People's Court on Case Guidance, the situation will inevitably improve in the future.

1. Constraints

It may be known through the above research that China has established a relatively complete case guidance system but its effect has not been fully manifested in civil and commercial judicial practice, and there are some problems in specific applications.

(1) Quantity is limited and application frequency is low

The Supreme People's Court had issued 42 guiding cases in civil and commercial matters in total as of September 30, 2016, of which only 20 were applied in trial practice, accounting for 47.6%. Among the 20 guiding cases applied, guiding case 24 has been applied for 165 times, but none of other cases has been applied for more than 45 times. Whether in the overall application of guiding cases in civil and commercial matters or in the specific applications of each guiding case, the application frequency is not high.

(2) Distribution of applications is geographically unbalanced

In trial practice, as the frequency of applying guiding cases rises, the regions involved are wider. According to the above statistics and analysis, 30 provinces and cities have been involved to date. The province with the highest application rate is Zhejiang, followed by Guangdong, Shandong, Jiangsu, Henan, Shanghai, Liaoning, Anhui, Hubei, Sichuan, and Fujian. Of 12 provinces and cities with more than ten application cases, eight have contributed guiding cases.

(3) Inconsistency of the modes of expression of cited guiding cases

Paragraph 1 of Article 11 of the Detailed Rules for the Implementation of the Provisions of the Supreme People's Court on Case Guidance issued on May 13, 2015, provides that: "In the process of handling a case, the case handling personnel shall consult relevant guiding cases. Where any relevant guiding case is quoted in the written adjudication, the guiding case number and key points of judgment shall be quoted in the reasons part of adjudication." The Notice of the Supreme People's Court on Issuing the Specifications for Preparing Civil Adjudications by the People's Courts and the Style of Civil Litigation Instruments issued on June 28, 2016, further specifies that: "Where a case pending trial is similar to a guiding case issued by the Supreme People's Court in terms of basic facts and application of law, the guiding case shall be quoted in the reasons part of adjudication, with the guiding case number and key points of judgment stated." But in trial practice, the relevant provisions appear not to be fully implemented. To date, for judges or non-judges, there has been no unified mode to express the citations of guiding cases, and the using methods vary. Especially, the modes of expression of citations by non-judges vary among them, and even the same person uses different expression modes from time to time. The inconsistency has a negative effect not only on the full guiding role of guiding cases in trial practice, but also the maintenance of ity of the guiding force.

(4) Implicit citations by judges are unhelpful to social supervision

It may be known from the analysis of the categorized citations of guiding cases that in trial practice, judges tend to implicitly cite guiding cases in adjudication, which is not helpful to ensure the certainty of the law because when judges decide similar cases by analogy and deduction, it is possible that their subjective values lead to uncertainty of their judgments, affecting the citations of guiding cases. If judges adjudicate by implicit citation without explanations in adjudications, it will be hard in practice to put their judgments under scrutiny and avoid arbitrary citations of guiding cases.

2. Recommendations for improvement

In the future applications of guiding cases, more attention should be paid to improving the relevant guarantee systems to ensure better application of guiding cases in civil and commercial matters in judicial practice and advance the case guidance work in depth.

(1) Improving the reference mechanism of guiding cases

(a) Specifying the conditions for and the modes and force of reference to guiding cases

The Detailed Rules for the Implementation of the Provisions of the Supreme People's Court on Case Guidance were issued on May 13, 2015, which, however, only specifies the mode of citation by judges. The Notice of the Supreme People's Court on Issuing the Specifications for Preparing Civil Adjudications by the People's Courts and the Style of Civil Litigation Instruments issued on June 28, 2016, further specifies that: "No guiding case may be cited as a basis for adjudication." But for now, in respect of citations by nonjudges, there is no law addressing the specific conditions for and force of the application of guiding cases. It is necessary to legislate on the conditions, modes, and force to maintain the unity and ity of the applications of guiding cases.

(b) Establishing a training system of the application of guiding cases

To some extent, it depends on the professional quality of judges to achieve the objectives of the case guidance system, and the knowledge reserve of judges in the application methods and techniques is an important guarantee for the application in judicial proceedings of guiding cases. The professional quality of judges must be improved in order to improve the application in judicial proceedings of guiding cases.[11]

Given the inadequate attention currently paid by judges to the application of guiding cases and their shortage of application knowledge reserve, publicity and training may be provided from the following aspects: First, more education should be provided within the courts on case guidance, judges should develop a correct understanding of case guidance work, and training sessions on the application of cases should be regularly organized. Second, the application of guiding cases should be summarized, studied, researched, and discussed in a concentrated manner. Third, experts and scholars should be invited to give lectures at courts to improve the ability of judges to understand and use guiding cases. The thinking and even the habit of judges to apply guiding cases may be gradually developed in the above methods.

(2) Improving the supervision and incentive mechanisms of the application of guiding cases

(a) Establishing and improving a supervision mechanism of the application of guiding cases

It is necessary to develop a supervisory system for the application of guiding cases in order to further improve the case guidance system, regulate the acts of courts and litigants, promote judicial impartiality, and achieve the objective of same judgments for same cases. The system may include two types of supervision: supervision by the state departments and the public. [12]The supervision by state departments falls into supervision inside courts and supervision by procuratorial departments. Supervision inside courts includes supervision between courts at higher and lower levels and supervision of courts by the courts' internal specialized departments. Supervision by the public means that where a judge ought to make reference but fails to render a judgment by reference to a guiding case despite the similarity between the facts of the case tried to those of the guiding case, a party may file an appeal or petition for retrial, and a court at a higher level may render a new judgment. In conclusion, a supervisory system for the application of guiding cases may be preliminarily established on the basis of the above ideas to ensure that guiding cases have an actual effect in judicial practice.

(b) Establishing and improving an incentive mechanism of the application of guiding cases

Adequate supervisory and incentive mechanisms are two most effective institutional guarantees to promote the timely application of guiding cases in judicial practice. Attention should also be paid to the establishment and improvement of an appropriate incentive mechanism while the supervisory mechanism of the application of guiding cases is stressed. The so-called incentive mechanism means a method to reflect the interaction between incentive givers and receivers through a rationalized system, mainly including spiritual, remuneration, honor, and job incentives. Job incentives may be adopted here.The application in judicial proceedings of guiding cases and the implementation of the case guidance system may be included in the annual appraisal of courts and judges at all levels, different ranks may be set, and based the ranks, different rewards will be given to effectively mobilize courts and judges to apply guiding cases.[13]

(3) Changing implicit citations by judges into explicit ones

Implicit citations by judges in a broad sense include the situation that the procuratorial personnel recommendor the litigants request that judges render judgments by reference to guiding cases but judges fail to expressly respond in thereasons part of adjudication and the adjudications are consistent with the spirit of guiding cases and the situation that judges actually cite guiding cases in their adjudications but without clear explanations in adjudications. The Detailed Rules for the Implementation of the Provisions of the Supreme People's Court on Case Guidance clearly require that judges must make responses in the former situation; but in the latter, there are no specific provisions, and it is necessary to make rules to regulate it.

* Zhao Xiaohai, director of the Legal Information Center of Peking University and editor-in-chief of chinalawinfo.com. Guo Ye, deputy director of the Legal Information Center of Peking University and deputy editor-in-chief of chinalawinfo.com. 

We would like to acknowledge the guidance offered by Zhang Qi, professor of the Peking University Law School, and the support provided by Zhang Yang, Sun Mei, Zhang Wenshuo, Lei Lei, Liu Chunmei and Wu Xiaojing, members of the Guiding Case Research Team of chinalawinfo.com.

[1] See the Provisions of the Supreme People's Court on Case Guidance, the Detailed Rules of the Supreme People's Court for the Implementation of the Provisions on Case Guidance, and the Notice of the Supreme People's Court on Issuing the Specifications for Preparing Civil Adjudications by the People's Courts and the Style of Civil Litigation Instruments.

[2] The case to which guiding case 1 was first applied: Wuxi Hengmao Times Real Estate Brokerage Co. Ltd. v. Zhang Minxin and Gu Zhengrong (brokerage contract dispute) (No. 11 (2011), First, Civil Division, Nanchang). Guiding case 1 is not cited in this case but appears in Additional Comments. 

[3] The case to which guiding case 8 was first applied: Ma Meihua et al v. Wuxi Heruntai Co. Ltd. (Company dissolution) (No. 626 (2011), Final, Commercial Division, Wuxi). Guiding case 8 is not cited in this case but appears in the Case Notes. 

[4] The case to which guiding case 24 was first applied: Lv Ziren v. Han Yanchun et al (dispute over liability for a traffic accident) (No. 01309 [2014], First, Civil Division I, Liuyu). This case was closed on January 12, 2014, earlier than the date of January 26, 2014, when guiding case 24 was issued, and the reasons are unknown.

[5] "Single element expression" means application expression including one of issuer, guiding case number, and key points of judgment; "double element expression" means application expression including issuer and one of issuance group number, issuance date, guiding case number, key points of judgment, and title of guiding case; "three-element expression" means application expression including issuer and two of issuance group number, issuance date, guiding case number, key points of judgment, and title of guiding case; "four-element expression" means application expression including issuer and three of issuance group number, issuance date, guiding case number, key points of judgment, and title of guiding case; "five-element expression" means application expression including issuer and four of issuance group number, issuance date, guiding case number, key points of judgment, and title of guiding case; and "six-element expression" means application expression including issuer, issuance group number, issuance date, guiding case number, key points of judgment, and title of guiding case.

[6] "Explicit citations" means that judges expressly cite guiding cases to explain reasons when rendering their adjudications, mainly including active citations and passive citations. The former means that judges cite guiding cases to explain reasons of their own motion; and the latter means that judges passively cite guiding cases to explain reasons, that is, when procuratorial personnel recommend or litigants request reference to guiding cases, judges respond accordingly in thereasons part of their adjudications. 

[7] Implicit citations may be understood in a broad sense and in a narrow sense. Implicit citation in a narrow sense means that procuratorial personnel recommend or litigants request that judges render adjudications by reference to guiding cases but judges fail to expressly respond in the reasons part of their adjudications and the adjudications are consistent with the spirit of guiding cases; and implicit citation in a broad sense includes the situation that judges actually cite guiding cases for adjudication but without clear explanations in the adjudications.

[8] See "The Impact of Victims' Special Physical Conditions on Tort Liability," Sun Peng, Law, Issue 12, 2012.

[9] See "Discussion and Analysis of Damages for Victims in Special Physical Conditions of Motor Vehicle Traffic Accidents," Wang Weikun, Master's Degree Theses of the Huaqiao University in 2013.

[10] "Disability Compensation Coefficients in the Presence of Degree of Contribution to Traffic Personal Injury," Wan Fawen, People's Court Daily, p7, August 16, 2012.

[11] See "The Significance and Path of Establishing a Precedent System in China: Answers to Questions about the Case Law," Zhang Qi, Law and Social Development, Issue 6, 2014. 

[12] See "Research on a Case Guidance System," Ding Haihu, Doctoral Dissertations of the Southwest University of Political Science and Law in 2008.

[13] See "The Mechanism of Application of Guiding Cases in Judicial Proceedings—From the Perspective of the Specific Application of the Provisions of the Supreme People's Court on Case Guidance," Hu Guojun and Wang Jianping, Journal of Shanghai Institution of Political Science and Law (Law Symposium), Issue 4, 2012.