The case guidance system in China: a practical guide to intellectual property cases

T. Lu*

*Corresponding author for this work

Research output: Contribution to journalArticleAcademicpeer-review

Abstract

According to the country’s Constitution, the People’s Republic of China features a ‘socialist legal system’ in which statutory law, rather than case law, is the primary source of law. However, that does not reduce the value of the attention China has directed to establishing the case guidance system (CGS). Although the CGS is not used according to case law, it provides a useful observation window.

The CGS is intricate and contains multiple subsets of example cases, which are selected by various bodies and announced in various styles. These subsets often bear similar names (eg guiding cases, model cases and referential cases), yet they may produce different outcomes.

The CGS is not a plain collection of cases per se. Each subset of the CGS is often accompanied by the issuing bodies’ summaries and comments on the cases, which highlight specific guiding points thereof.

This article provides, from a practical perspective, a layered introduction to the main court-issued CGS example cases that can be easily accessed online, with a specific focus on intellectual property cases.

In 2005, the Supreme People’s Court of China (SPC) issued the Second Five-Year Reform Outline for the People’s Courts (2004–2008),1 officially introducing the concepts of the case guidance system (CGS) and guiding cases (指导性案例, GCs) and designating their construction as crucial for China’s judicial reform. In 2014, an aim ‘to strengthen and regulate case guidance’ was promoted to become a policy of the Chinese Communist Party.2

The CGS’ main body features an overall ‘1 + x’ structure, such that the SPC’s GCs are at the top and all other types of example cases lie beneath.3 GCs have quasi-legal source status, whereas none of the remaining cases are sources of law.
Original languageEnglish
Pages (from-to)207-212
Number of pages6
JournalJournal of Intellectual Property Law & Practice
Volume16
Issue number3
DOIs
Publication statusPublished - 1 Mar 2021

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