Author: Xu Jing, Ye Wanli, Intellectual Property, King & Wood Mallesons

On July 27, 2020, the Supreme People’s Court of the People’s Republic of China (“SPC”) issued the SPC Guidelines Concerning Alignment of Application of Law and Strengthening Search of Similar Cases (Trial) (the “Guidelines”), which will come into effect on July 31, 2020. Strengthening search of similar cases is one of the improving measures in the Outlines for the Fifth Five-Year Reform of the People’s Court (2019-2023), and the similar case search has been tested in several people’s courts in different levels for years. This is an encouraging progress in PRC court’s efforts in resolving the issue of “different results on the same issue”, and it is expected to see more transparency and predictability in litigating IP cases before PRC courts.

The Guidelines

The Guidelines has 14 articles, including the following highlights:

  • Definition of a Similar Case (Article 1)

The Guidelines defines a “similar case” as a case that is decided with an effective judgment and has similarities with the instant case, in aspects of fundamental facts, issues, application of law, etc.

  • Scope of Applicable Cases (Article 2)

The Guidelines requires a court to run the search if the instant case falls into the following four categories: 1) the case is to be submitted with the presiding judge meetings or judicial committee for discussion; 2) there is no clear rule or courts have different rules on an issue; 3) the chief judge of a court or tribunal orders the search by exercising his or her authority of supervision; and 4) there are other circumstances justifying the search.

  • Scope and Method of the Search (Articles 4 and 5)

Scope of similar cases to be searched covers the following four types: 1) Guiding Cases released by the SPC; 2) Representative Cases selected by the SPC and other SPC’s effective decisions; 3) Reference Cases selected by Higher Courts and or cases decided by Higher Courts; and 4) cases decided by a higher level court and the court. The Guidelines requires that the court shall review all relevant Guiding Cases and for other three types give priority to cases that are decided within 3 years.

The Guidelines allows a presiding judge to conduct the search by using keywords, relevant legal provisions or relevant cases in general.

  • Identification and Comparison of Similar Cases (Article 6)

The Guidelines leaves the authority of determining whether a case is a similar case to the presiding judge.

  • Search Report and Explanation (Articles 7 and 8)

The Guidelines requires that the presiding judge should explain his or her analysis on the similar cases identified through the search to the panel of judges in the instant case and to the presiding judge meetings and adjudication report meetings, or make a search report for records.

  • Application of the Search Results (Article 9)

Unless replaced by new laws, regulations or judicial interpretations, or overruled by new Guiding Cases, the court shall apply the rules of a Guiding Cases in the instant case. For other similar cases identified through the search, the court may use them as references.

  • Judge’s Response to Similar Cases Provided by Litigants (Article 10)

The Guidelines requires that a court shall respond to claims or defenses based on similar cases presented by litigants. For Guiding Cases, the court shall give written response in its court opinions on whether the Guiding Case should be applied and the underlying reasons; for other types of similar cases, the court may elucidates its reasoning on whether and how the similar case should be considered in the instant case.

  • Resolution of Different Rules or Criteria among Similar Cases (Article 11)

If differences of rule or criteria in similar cases identified in the search exist, the Guidelines allows the court to consider all relevant factors and resolve the issue according to the SPC’s Implementation Rules concerning Resolving Differences in the Application of Law (i.e. report the issue to the SPC’s designated division for direction).

Comments and Recommendations

China is a civil law jurisdiction, and, traditionally, precedent plays a very limited role in adjudication. In recent years, the SPC has been actively advancing its programs on aligning different criteria on specific issues among courts, and the Guidelines is one of its efforts on resolving the so-called issue of “different results on the same issue”. While the Guidelines focuses on the alignment of judicial standards from court’s perspective, it indeed provides guidance and insights for litigants on exploiting this mechanism how to present precedents to support its claims or defenses.

Specifically, the Guidelines specifies mechanism of the search, including scope of the applicable cases, responsible person and platforms, methods and scope of the search, identification and comparison of similar cases, application of the search results, and resolution of differences standards among similar cases. The Guidelines also makes clear on the hierarchy of authorities, i.e. 1) Guiding Cases released by the SPC; 2) Representative Cases released by the SPC and cases decided by the SPC; 3) Reference Cases selected by Higher Courts and cases decided by Higher Courts; and 4) cases decided by a higher level court and the instant court. Additionally, the Guidelines follows the rules of referring Guiding Cases under the SPC Implementation Rules on Provisions concerning Guidance Cases (Articles 9-12 of the Implementation Rules), and provides that the court may refer to similar cases other than Guiding Cases and may elucidate whether the similar case can be considered if a litigant present the case as a similar case to support its position.

The Guidelines governs court proceedings for civil disputes, criminal enforcement and administrative appeals. In other words, the Guidelines applies in all types of IP disputes. In fact, PRC courts have implemented several measures in aligning different criteria in adjudication, such as specialized courts and tribunals and the Guiding Case project, and the Guidelines is of course another important progress. It will further strengthen the ongoing improvements on aligning different criteria in adjudication and increase litigant’s predictability on outcomes of judicial proceedings.

Our recommendations for litigants are as follows:

  • Pay attention to the growing importance of similar cases in court adjudication. Litigants should focus on both the statute and the similar cases, and arrange comprehensive case search to support claims or defenses.
  • Search and present similar cases according to the provisions of the Guidelines. Our recommendation is to conduct the search in primary databases, closely examine fundamental facts, issues and application of law of both the instant case and the similar cases identified in the search, and present them with the court aligning with the hierarchy of authorities under the Guidelines. Meantime, a comprehensive search on new laws, regulations and judicial interpretations, which are amended or promulgated frequently in these years, are necessary to ensure that the similar cases to be presented has the reference value.
  • Carefully search the specific procedure rules and practices of submitting similar cases released or used by different courts, including the formality requirements, method of summarizing a case, timing of submission and method of presenting opinions. In 2017, the Beijing IP Court released a draft comment called the Beijing IP Court’s Implementation Guidelines on Works of Guiding Cases, which provides details of how to present and examine cases submitted by litigants. But a book authored by a judge in the Beijing IP Court commented that litigants and attorneys were not very aware of the rules, and sometimes cases were not submitted in a proper format or time. It is recommended to check the local rules and present your similar cases aligning with their requirements.