III. A package of 10 proposals for future publication of the Summary of Judgment
　　(I) Prudent consideration of appropriate reform of the setup of the court system in China:
　　Generally speaking, the socialist judicial system in China can now basically meet the requirement of the basis of the socialist market economy in the country. Meanwhile, it is undeniable that there still exist barriers on the part of systems, mechanisms and safeguards to bringing into play the advantages of the socialist judicial system in the country. Under such a circumstance, it is necessary to keep pace with the times by conducting self-reform and self-improvement. Speaking from the perspective of the setup of the court system in China, a greatest question now is how to rationally put an end to the phenomenon of local judicial protectionism that did not appear to be conspicuous in the years when China was practicing a centrally planned economy before 1978, but that has turned increasingly obvious in the current age of development of a market economy in the country. Presently, Chinese courts are established on the basis of administrative divisions, which will inevitably cast direct or indirect impacts on judicial unity in the country, and which will proceed to negatively impact effective application of the system of typical case guidance. As reform of the court system will involve the national constitutional system, it is necessary to conduct prudent research in this endeavor. The successful experience of Vietnam in working out the Strategy for Judicial Reform in the 2005-2020 Period is of reference value to China in this respect. This Strategy, “in accordance with the organization and functions of People’s Courts, and establishment and development of the organizational structure of judicial organs”, proposes that steps be taken to “change the current approach of establishing the court system on the basis of administrative divisions, and reorganize the court system on the basis of the scope of jurisdiction of trial.” It says: “District courts in the court system shall be the courts of first instance, which shall exercise jurisdiction over one or more district-level administrative regions. For courts exercising jurisdiction over appeals, they shall mainly take charge of trying cases of appeal or counter-appeal against judgments given by courts of first instance, and selectively trying part of the first-instance cases. Where the parties concerned refuse to accept judgments given by them, they can appeal their cases to courts at an even higher level established on the basis of regional divisions.”
　　(II) Appropriate reform to realize a shift of the system of typical case guidance over adjudication from the “administrationpower” pattern onto the “judgment-reasoning” pattern. An American scholar expressed the points of view that the operation of judicial power will show different characteristics under different structures of government power; that in judicial procedures under the structure of a bureaucratic ideal-type government power, there is a strict hierarchical order between judicial organs at higher levels and those at lower levels, with the existence of defacto administrative relationship of vertical leadership; and that in judicial procedures under the structure of a cooperative idealtype government power, the distribution of power appears to be in a parallel or horizontal relationship, rather than a vertical relationship of affiliation between those at higher levels and lower levels. As a result, there have generally formed the pattern of bureaucratic judicial system and the pattern of cooperative judicial system. On the basis of the centuries-old tradition of centralism and universal generalization of administrative mindset in China, guidance over the work of adjudication at courts also shows the characteristics and attributes of the “administrationpower” type. For example, for the system of level-to-level submission of planned judgments for approval in court trials(e.g. the trial judge → the deputy chief judge → the chief judge→ vice-president of the court → the adjudicative committee of the court), for level to level request by courts at lower levels for instruction from courts at higher levels, and for the making of judicial interpretations in an abstract sense (which are eventually granted legal effects), they are all similar to the “issuance of orders” by the superior to the inferior or inhibition of the will, and show the tinge of “inhibition of authority”. As far as the most essential attribute of “impartial judgment” of court decisions is concerned, the most appropriate approach should be “convincing by reasoning”. According to Klaus Tolksdorf, the president of the Federal Court of Justice of Germany, and other justices met, the Bundesgerichtshof (Federal Supreme Court) is not supportive of applying the system of key points of judgment with binding force. Only by relying on the quality of judgments, can the decisions issued by the Bundesgerichtshof gain de-facto binding force through long-term accumulation, according to them.
　　(III) Rational setup of the focus of judgment in preliminary trial and trial on appeal:
　　The Anglo-American law system generally differentiates preliminary trial from trial on appeal, with judgment in preliminary trial focused on the determination of facts in cases, and with judgment in trial on appeal focused on the application of law. In comparison, it has been a relatively long period of time since the civil procedure laws of leading countries of the Continental law system, such as Germany and Japan, adopted the practice of implementing the “trial of law” system in the trial of third instance(appellant instance). In China, judgment in the trial of cases by the four levels of courts is generally identical. Therefore, it is necessary to make rational changes in an appropriate way. In particular, it is necessary to make different arrangements for proceedings in light of the different types of cases (civil cases and criminal cases, general cases and major cases, simple cases and doubtful and difficult cases). For example, as far as the cases taken by the Supreme People’s Court for adjudication is concerned, a majority of the civil and commercial cases should be limited to the “trial of law”, while the death-sentence cases can be referred to the “trial of facts” and the “trial of law” at the same time.
　　(IV) Scientific setup of legal issues up to the relevant procedures of the Supreme People’s Court:
　　In the Yuan (1271-1368) and Qing (1644-1911) Dynasties of China, there were legally prescribed procedures for application for judgment or ruling at higher levels in doubtful and difficult cases and in cases of heavy criminal punishment. Under such procedures, the government offices of prefectures or regions would give an initial draft judgment and state their reasons for it. Even without a law applicable in trying a case, they would also give an initial draft judgment. Then, provinciallevel senior officials would have to conduct preliminary review of the initial draft judgment in the cases submitted to them by local government offices, and would give a final draft judgment in the cases on the basis of preliminary review. After that, the final draft judgments from local governments would be referred to the Central Authorities for judgment or ruling. The Ministry of Punishments and other professional judicial organs of the Central Authorities would conduct final review of the final draft judgment in the cases referred to them, and would approve the final draft judgment, make a new judgment, turn down the final draft judgment or draw a different conclusion to the cases in their final review. (The Ministry of Punishments had no final decision making power in the application of law in trying doubtful and difficult cases. Only after the doubtful and difficult cases were referred to the emperor for a supreme judgment or ruling, would the final judgment in the cases take effect). Particularly, in order that the draft judgment would be accepted by judicial organs at higher levels, and in efforts to reduce the possibility of turndown, precedents tried by the supreme judicial organ would often be referred to in comparison or applied in the trial of cases in both dynasties. Many countries and regions around the world, with a view to unifying the legal system, have established some new systems to this effect. For example, the Civil Procedure Reform Act of Germany provides that appeals can be made under the following two circumstances: (1) The cases concerned are of principled significance (namely, the cases concerned raise legal issues with significance of judgment that need to be and can be clarified and that many occur from an indefinite large number of cases, according to Section 543(2) of the German Code of Civil Procedure), or (2) There is development of law(namely, the cases concerned involve judgment of facts in typical or general cases of life, and point out an orientation for future cases as a result), or consideration of guarantee of judicial unity (which mainly refers to the risk of possible repetition of erroneous judgment in cases, besides redress of circumstances in contravention with judgment issued by the supreme court). Meanwhile, Clause 1 in Article 318 of the new Code of Civil Procedure of Japan provides: “With regard to a case in which the judgment in prior instance contains a determination that is inconsistent with precedents rendered by the Supreme Court(or precedents rendered by the former Supreme Court or those rendered by high courts as the final appellate court or the court of second instance, if there are no precedents rendered by the Supreme Court) or any other case in which the judgment in prior instance is found to involve material matters concerning the construction of laws and regulations, where the court with which a final appeal shall be filed is the Supreme Court, the Supreme Court, upon petition, by an order, may accept such case as the final appellate court.” It means that under such a circumstance, a decision can be made to accept the case. Article 469 of the Civil Procedure Act of Taiwan region of China amended in 2003 also has similar provisions.
　　(V) Rational identification of “factual issues” and “legal issues”:
　　A difficult point of efforts to draw a distinction between“factual issues” and “legal issues” is the existence of a so-called“intermediate zone”, namely “mixed issues” called by the theory of the Anglo-American law system, which are not only interrelated with facts, but are also inseparable from the interpretation of law. It is just like what some scholars have pointed out: Although the Anglo-American law system and the Continental law system each have their own processes of involution that are independently from each other, and have formed legal systems and ways of logical thinking with different styles, they have both formed systemic proposals and pragmatic paths and standards for differentiation between “factual issues” and “legal issues”. For example, the Anglo-American law system differentiates “factual issues” from “legal issues” by means of the following standards: comparison of the judicial capacity of different adjudicators, whether there exists repetitive emergence, preference to uniform or plural judicial policies, ex ante or ex post legal value, whether exists the requirement to control the load of dossiers of cases, and exceptions of insufficiency of evidence. Only on the basis of rational differentiation between “factual issues” and “legal issues”, can the contents of the Summary of Judgment be brought under rational regulation, and can an appropriate system of typical case guidance be established.
　　(VI) Active promotion of renovation of adjudicative documentation:
　　In efforts to improve the quality of adjudicative documents, many courts have raised many new requirements and have adopted a series of measures. Some courts have managed to establish and improve the relevant working mechanisms, contributing to promoting the reasoning of their adjudicative documentation to a higher level. As a result, higher quality adjudicative documents have kept emerging. Besides, courts in various regions have presented best quality precedents, typical precedents for reference, guiding typical cases, etc. But as far as the general situation of adjudicative documentation in the whole of China is concerned, there still exists the problem that adjudicative documentation does not emphasize reasoning or is not good at reasoning. There have even occurred cases of adjudicative documents full of numerous mistakes posted on the Internet or published through newspapers. As far as the causes are concerned, there are not only the problem of inadequacy of the reasoning capacity of judges, but also the problem of inappropriateness in reasoning; not only the problem of existence of too many cases which causes judges to have no time to consider how to reason, but also the problem of insufficient awareness about the significance of reasoning in adjudicative documentation; even not only the problem of irresponsibility in doing work, but also the problem of carelessness in working style, etc. Speaking from the perspective of the establishment of a system of typical case guidance in China, the quality and guiding capacity of the Summary of Judgment are both directly and closely related to the quality of the original adjudicative documents. As far as this point is concerned, what need renovation most are the following two aspects: Firstly, the structure of adjudicative documents: It is absolutely necessary to change the status quo of unexceptional uniformity of adjudicative documents regardless of complicatedness and simplicity of the cases, and regardless of the procedural complicatedness involved, and to redesign the structure of all adjudicative documents elaborately on the basis of classification into different categories accordingly. And secondly, reasoning and theoretical proof by the Summary of Judgment: In particular, efforts should be made to change the approach of rigidity in the determination of facts in cases and mechanical application of law in trying cases. In this respect, it is imperative to strengthen theoretical proof and reasoning for judgment in cases. Particularly, where there emerge cases with a potential function of guidance, we should become even more aware of the great significance of turning them into possible guiding typical cases and refer them to highly experience judges with a great capacity of judgment to for processing, in order not to waste resources of cases with the potential to become guiding precedents.
　　(VII) Full-scale and swift disclosure of adjudicative documents:
　　Reform of the system of judicial disclosure is one of the priorities of the judicial reform project of the Central Authorities. It is also a reform task mentioned by all the three five-year programs for reform of the system of People’s Courts. Over recent years, the Supreme People’s Court has successively promulgated a series of official documents on promoting judicial openness, such as the Six Provisions for Judicial Openness and the Provisions for People’s Courts’ Acceptance of Supervision by News Media and Public Opinions promulgated in December 2009, and the Provisions for People’s Courts’Disclosure of Adjudicative Documents Through the Internet, the Provisions for Live Broadcast and Recorded Broadcast of Trials by People’s Courts and the Provisions for Audiotaping and Videotaping of Activities of Court Trials promulgated in November 2010. In particular, full-scale, lawful, timely, swift and convenient disclosure of adjudicative documents, to a certain extent, will be an important premise for operation of the system of typical case guidance. In a next stage, priorities of the work to this effect include the following two points: Firstly, a unified website-based platform can be established for courts in a same jurisdiction, regardless of their levels, to disclose adjudicative documents. For example, through such a platform, Intermediate People’s Courts can disclose adjudicative documents issued by themselves and by all grassroots-level courts within their jurisdictions, provincial-level Higher People’s Courts can disclose adjudicative documents issued by themselves and by all Intermediate People’s Courts and grassroots-level courts within their jurisdictions, and the Supreme People’s Court can disclose adjudicative documents issued by itself and by all local courts in all parts of China, in the interest of consistency of justice by all courts within the same jurisdictions and in the whole of China as well. And secondly, the court system can manage to ensure that all adjudicative documents disclosed can be referred to in convenient use by means of modern science and technology, and through rational application of modern editing means.
　　(VIII) Establishment and improvement of mechanisms in support of the system of typical case guidance:
　　Late senior Chinese leader Deng Xiaoping (1904-1997) repeatedly emphasized: “It is the system that is more reliable.”Here, “the system” referred to by Deng is in comparison with “the rule of man”, and means that systemic inhibition is more regular, more perpetual and harder, rather than arbitrary, temporary and flexible. The system of typical case guidance is only one of a series of systems within the whole socialist legal system of China intended to maintain and promote unity of the system of laws. To give play to the roles of the system of typical case guidance in a maximum way is not only related to coordination with other systems (such as the system of appeal, the system of judicial supervision and the system of counter-appeal), but is also closely related to its own procedural guarantee (e.g. by defining obviously irrational judgments in contravention with the Summary of Judgment as causes for a change of judgments in a second-instance trial or a retrial through revision of procedural laws). Besides, it is also related to other relevant guarantee systems or mechanisms (such as the system of case appraisal and review, the system of grading the performance of judges and the system of establishing the responsibility of lawyers for failing to fulfill the obligation of paying sufficient attention to guiding typical cases). It is tenable to say that only by systematically establishing and improving such guarantee systems, can the constitutional requirement for unity of the legal system be realized in a maximum way. Here, we can particularly refer to some approaches of granting hard binding force to“precedents” in ancient China. For example, the Qing Dynasty(1644-1911) had particular provisions for both “conventions”and “typical cases” as precedents approved by the Ministry of Punishments: “In the revision of the Great Qing Legal Code in 1740, Emperor Qianlong (1735-1795) thought that annotations to the Great Qing Legal Code were only playing the role of interpretation and statement, and that such annotations could give rise to ambiguous interpretations with two or more possible meanings, fail to grasp the main points or make the already clear legal provisions unnecessarily complicated. Therefore, such annotations have been deleted. For some interpretations capable of filling up loopholes or omissions of law, and capable of enhancing understanding of jurisprudence, they can be singled out for compilation into collections of precedents, in the interest of quotation;” and “For typical cases as precedents applied by regions directly affiliated to the capital city, they actually belong to measures adopted under the circumstance of absence of provision by law or regulations, or under the situation of the particular period of time. Or, they actually belong to provisions particularly made and approved through certain procedures in accordance with the realities of the regions concerned, or as a result of divine instruction by the emperor. Therefore, such typical cases as precedents shall be observable in judicature without exception.”
　　(IX) Practical strengthening of establishment of the community of legal circles:
　　Adjudicative documents are carriers and documents in a static sense for recording activities of judgment. As far as judicial power in a broad sense is concerned, it is a product of “struggle”among the many players in society, including the parties concerned in legal proceedings, the public, news media, legal experts, the judiciaries and the government. For judicial power in a narrow sense, it is a result of exertion of “resultant force”and “struggle” on the part of participants in legal proceedings. Therefore, the quality of adjudicative documents as what we can call a type of “end products” is, without doubt, closely related to the capacity of action, experience in “struggle”, argumentation skills, judicial expression, etc on the part of all participants in legal proceedings. Of course, the final “assemblers of products” and“quality controllers” will still be the judges. Therefore, we need to strengthen the legal attainment and belief in the rule of law by the whole nation through various channels and by various means. Meanwhile, we what is even more imperative now is to practically strengthen establishment of the community of legal circles (with the inclusion of both similarities and differences in habits of mind of the statutory law and the case law, techniques and means of differentiation of interpretations of law and precedents, and common ethical standards for legal professions).
　　(X) Exertion of all efforts to strengthen the ethics of judges:
　　Philosophically, no specific conclusion has been drawn in the debate about the nature of human beings to be good or bad. Let’s presume the nature of human beings under systemic designing and inhibition to be “bad”. But if human beings have really become “bad” or “evil”, any system will become useless no matter how perfect it is, and, negative consequences caused by ready systems can be even more serious. Shang Yang (390BC-338BC), an important statesman of the State of Qin during the Warring States Period of Chinese history (475BC-221BC), said: “Why will the State become chaotic? The reason it that rulers of the State, in the application of law, permit individuals to put forward points of view based on their own subjective judgment”; and “Arbitrary interpretation of law by the monarch or chancellors will result in shaking the stability of law, disrupting the characteristics of hardness of law, and giving rise to chaos.”Similarly, the fate of the system of typical case guidance is not only related to the conditions of the aforesaid series of guarantee systems and mechanisms, but is also related to the ethics of all judges. How to give play to the guiding effect of the Summary of Judgment and how to promote improvement of the statutory law are among matters that are subject to the judges’ earnest treatment of all cases in their hands, sufficient display of their judicial wisdom, and precise and appropriate making of judgment in all cases.
　　Just as we cannot mechanically apply the theory of evolutional rationalism/constructivist rationalism of Friedrich Hayek on public order, the theory of Douglass North on causative/compulsory institutional change, the framework of analysis of the rule of law based on government dominance/ social involution advocated by Chinese scholars, etc in the practice of promoting the development of constitutionalism in China, development of the system of typical case guidance in China will inevitably be a process of mutual promotion between accumulation of experience and rational construction. Let’s adopt a scientific and rational attitude in taking the utmost care of development of the system of typical case guidance in China in a favorable orientation.