AN ANALYSIS OF THE INTERPRETATION FUNCTION OF CRIMINAL GUIDING CASES IN CHINA
I. THE ‘FAILURE’ OF THE FUNCTION OF THE SYSTEM THAT STANDARDIZES CRIMINAL LAW INTERPRETATION
A. The Contradiction between the Abstraction of Criminal Law Interpretation and the Concreteness of Case Facts
B. The Contradiction between the Lag of Abstract Criminal Law Interpretation and the Immediacy of Case Facts
II. INVESTIGATION ON THE FUNCTIONAL ATTRIBUTES OF CRIMINAL GUIDING CASES
A. The Precedent Attribute of Criminal Guiding Cases
B. Interpretation Features of Criminal Guiding Cases
III. COMPLEMENT OF CRIMINAL GUIDING CASES TO THE FUNCTION OF CRIMINAL LAW INTERPRETATION
A. Analysis on the Application Degree of Criminal Guiding Cases
B. The Way of Legal Interpretation of Criminal Guiding Cases
C. The Functional Separation of Criminal Guiding Cases and Criminal Law Interpretation
D. The Response of Criminal Guiding Cases to Criminal Policy
While acknowledging the advantages of China’s unique model of abstract criminal law interpretation, there must exist its model defect, which requires the timely inclusion of criminal guiding cases. However, whether guiding cases can play a role in judicial practice and to what extent, and how to fit with the unique abstract criminal law interpretation model in China, it is necessary to make an in-depth analysis of the institutional attributes. Criminal guiding cases have the attributes of precedent and interpretation, and can consolidate the function of criminal law interpretation through the function of individual case interpretation. The reasonable expansion of the number of criminal guiding cases is the basic guarantee to give full play to the case interpretation function; the function separation of the criminal guiding case and criminal law interpretation is the system guarantee to maintain the independence of judicial application; the response of criminal guiding case to criminal policy is the concept guarantee to reflect its judicial justice; criminal guiding cases in China can be fully incorporated into the existing system of criminal law interpretation, as the expansion and supplement of the function of criminal law interpretation, so as to play the function of criminal law interpretation safely and effectively.At the end of 2010, the Supreme People’s Court and the Supreme People’s Procuratorate respectively issued the first batch of guiding cases, marking the formal establishment of the case guidance system in China. As of May 2020, the Supreme People’s Court had issued 22 criminal guiding cases, and the Supreme People’s Procuratorate had issued 67 criminal guiding cases. The promulgation of these guiding cases becomes the focus of attention in the theoretical and practical circles. Whether and to what extent can criminal guiding cases play a role in judicial practice, and how they fit in with China’s unique abstract criminal law interpretation model are what scholars and judicial practitioners urgently seek answers to. However, in the ten years since the promulgation of the guiding cases, there are endless criticisms, and most of which focus on the low proportion of being cited in judicial practice; The guiding function of guiding cases is not shown in practice; ‘The declarative significance of the criminal case guidance system is greater than the actual effect’.Whether the above criticisms can be established and whether criminal guiding cases should and can bear the ‘guiding’ function are the issues that this article will study. It is well known that whether the case guidance system is not established or is established, China’s unique abstract system that standardizes criminal law interpretation is playing a huge role in criminal justice practice. With the inclusion of the case guidance system, what missions should be undertaken by criminal guiding cases and China’s normative criminal law interpretation in the practice of criminal justice is the prerequisite for the benign functioning of criminal guiding cases. Therefore, this article attempts to make a theoretical analysis of the legal interpretation function of criminal guiding cases in the framework of the current criminal law interpretation model, under the setting of the criminal law interpretation function, and under the premise that the Chinese criminal law interpretation system cannot be self-sufficient in order to bring into play the due judicial practice effect.I. THE ‘FAILURE’ OF THE FUNCTION OF THE SYSTEM THAT STANDARDIZES CRIMINAL LAW INTERPRETATIONThe study premise of China’s criminal case guidance system is what is its value in the application of criminal justice in China, that is, whether it can complement the functional shortcoming of the criminal law interpretation system in China. If the criminal law interpretation model of China can fully fill the loopholes of criminal legislation, fully respond to the judicial needs, and smoothly apply the trial practice, then the guidance of guiding cases will not have much value. On the contrary, the case guidance system can be used as a supplementary case interpretation of the criminal law interpretation system and has a unique significance.Professor Frank gives a relatively pertinent and objective evaluation of the existing criminal law interpretation system in China. In his opinion, on the one hand, the criminal law interpretation system may cause the deviation from the principle of no penalty without a law (nulla poena sine lege) in practice; but on the other hand, the criminal law interpretation system also guarantees the uniform application of Chinese law. Such a system is of great practical significance for a country as vast as China and for the concept of ‘unity’ which has been committed to in Chinese history. However, such a system can be said to be both advantageous and disadvantageous, and it is easy to cause the legislators to be slack, and not perform their corresponding functions, that is, constantly filling in the criminal law loopholes in the judicial practice. And because the system is not self-sufficient, this leads to the criminal law interpretation function being limited, that is, the ‘failure’ of function. The failure in the operation of the criminal law interpretation function can be understood as that the function that criminal law interpretation should have fails to realize its value fully, and the interpretation resources fail to supply the current demand of judicial practice effectively. Although the model of criminal law interpretation in China has become a relatively perfect and unique operating system of criminal law interpretation and has been functioning for a long time, the criminal law interpretation function still has not fully played the expected result in operation. The reason cannot be completely attributed to the mass production of interpretation provisions, the confusion of interpretation methods, or even some of the problems arising from the intrusion of criminal law interpretation into the legislative field, but lies in the natural institutional dilemma behind it. Under the existing system model, there is still a gap between the exertion of criminal law interpretation function and the realization requirement of case justice, which hinders its function operation, and the two main points are as follows:A. The Contradiction between the Abstraction of Criminal Law Interpretation and the Concreteness of Case FactsThe provisions of the criminal law must be clear, which is the requirement of the principle of no penalty without a law. One of the functions of criminal law interpretation is to make the ambiguous and vague words in the provisions of criminal law explicit and concrete, requiring that the criminal law interpretation should be specific or even precise. However, the interpretation procedure and interpretation carrier of Chinese criminal law interpretation determine that it has abstract characteristics similar to the criminal law text once it comes into being. Although the interpretation of criminal law is restricted by legislation and affected by many factors during its operation, the existing abstract criminal law interpretation model cannot timely provide a standardized, universal and comprehensive interpretation of the facts that are happening now and will happen in the future. Although the criminal law interpretation model adopting the form of ‘quasi-legislation’ has its normative characteristics, the so-called ‘concretized’ normative interpretation of the text itself does not get rid of its relatively abstract attribute. Just as legislation cannot cover all areas of fact, the criminal law interpretation cannot avoid this limitation. It can be seen from the criminal law legislative provisions targeted by the criminal law interpretation that not all the provisions are interpreted, nor are the ambiguities directly resolved after the provisions are interpreted, and even the criminal law interpretation itself may produce deviation in the interpretation of the same criminal law provision over and over again. Some provisions are not interpreted, which does not mean that they are completely unambiguous, but that it is difficult to describe them with abstract criminal law interpretation methods; and some criminal law provisions are explained many times, which does not mean that the criminal law interpretation perfectly eliminates legislative ambiguity and makes the meaning of the criminal law text unambiguously interpreted. Therefore, when the criminal law interpretation function is not functioning smoothly, we should pay more attention to that this may be that the abstract and quasi-legislative nature of China’s criminal law interpretation model indirectly leads to the objective existence of this limitation; however, the existing criminal law interpretation model cannot be self-consistent with it. The criminal law interpretation function is naturally unable to be self-sufficient in the interpretation of the text, which is manifested at least in the following aspects, the existing abstract interpretation model of criminal law cannot make convincing interpretation conclusions:First, the concept and rule setting in the criminal law cannot be explained abstractly. There are a large number of general principles and general concepts in the General Provisions of the Criminal Law, which not only guide the provisions and interpretations of the specific provisions, but also guide the application of specific charges in the specific provisions through the systematic setting of the general provisions. The author makes brief statistics on the effective interpretation of the criminal law based on the specific provisions of the General Provisions of the Criminal Law. There are 101 articles in the General Provisions of the Criminal Law. As of January 2021, only 44 articles have criminal law interpretations, and 57 are never interpreted by the interpretation organs. For the articles that are interpreted, most of them adopt the way of interpretation and make relatively specific provisions on the provisions in the General Provisions of the Criminal Law. However, this kind of provision is still abstract compared with the application of the Specific Provisions of the Criminal Law. The unexplained articles focus on the legislative purpose, principle, task, concept and other relevant articles of the criminal law, and these criminal law rules and abstract articles which need to be applied in specific case judgments are difficult to be elaborated by the existing criminal law interpretation.Second, for specific dangerous crimes, the offense of non-typical omission and other types of crimes in the Specific Provisions of the Criminal Law, the criminal law interpretation cannot solve them by existing interpretation techniques, which can only be determined by the judge in a case. The ‘specific danger’ in the specific dangerous crime requires that the possibility of legal interest infringement concretely achieve the degree of realization, and this danger belongs to the content of the constitutive requirements. As a constitutive requirement, whether there is a specific danger needs to be proved and confirmed by judicial personnel, but cannot be assumed or abstracted to some extent. Therefore, the specific danger is the danger determined by the judiciary, and the current criminal law interpretation technology cannot have a representational description of it and cannot meet this requirement. In addition, the nature of the offense of non-typical omission also makes it difficult for criminal law interpretation to describe in abstract explanatory language, while enumerated techniques are more difficult to deal with its realization of the crime?of commission stipulated in the laws and regulations with the form of omission.Third, criminal law interpretation cannot make an exhaustive list of the words with high degrees of probability in articles of the criminal law. The principle of no penalty without a law requires that the criminal law has the requirements of clarity, but the use of a large number of words with high degrees of probability in the provisions of the criminal law makes it difficult to carry out the requirements of clarity for the principle. Therefore, the criminal law interpretation has to make extensive use of enumerated interpretation techniques to fill these words with high degrees of probability so that they can provide guidance for judicial practice. However, because the criminal law interpretation is made in the form of text, language inevitably has the abstract nature of legislation, and criminal law interpretation cannot make a full list of facts for the change and variety of social needs. Therefore, criminal law interpretation has to add a miscellaneous interpretation after the enumerative interpretation provisions, so that it can be continued. In most of the explanatory provisions of the enumerative interpretation, there are basically miscellaneous interpretations.B. The Contradiction between the Lag of Abstract Criminal Law Interpretation and the Immediacy of Case FactsLegislation must have considerable foresight, that is, to apply abstract legal norms to the changing empirical facts. However, this kind of foresight is limited, because the rich diversity of empirical facts makes the legislation must be interpreted, and once the criminal law interpretation is promulgated, it will inevitably lag behind the development of social life and judicial practice. The application of law must face new problems again and again. Hence, to a certain extent, every legal interpretation has its own characteristics of the times. The criminal law interpretation is the judicial rule drawn from several similar cases and does not generally respond to a specific case, except in rare cases. Although this relatively lagging response is of general application significance of predictability for the facts of future cases, it cannot do more to help the realization of case justice. Generally speaking, from the criminal law legislation to the introduction of criminal law interpretation, there is a relatively long process of enactment, and in this process, it is likely that the social demand has undergone new changes. Therefore, while making up for the limited predictability of legislation, the criminal law interpretation may be surpassed by many factors, such as judicial reform, theoretical research and changes in social situations, and when the surpassed criminal law interpretation is faced with the new case judgment, its function is limited, either cannot be quoted, or even if it is quoted, it may be reinterpreted by judicial personnel. The lag in the criminal law interpretation is indirectly caused by the similar legislative procedure of China’s criminal law interpretation model. In other words, the criminal law interpretation attempts to unify the standards for applying laws, and in some cases, this effort becomes an obstacle to the development of the law.There is no doubt about the judicial significance of the criminal law interpretation, however, the failure of its mode operation is also very obvious. In some fields, some criminal law interpretations cannot provide specific and clear guidance for the implementation of criminal law, and the function of activating legislation is lacking. This is an indisputable fact. However, when designing the system, we can make up for the criminal law interpretation model within the framework of the existing system. The establishment and timely inclusion of the case guidance system, the precedent attribute and interpretation attribute shown in the criminal guidance case that constitutes the content of the system, can achieve functional perfection and complement the poor function of criminal law interpretation in the system dilemma. The overlapping and complementarity of criminal guiding cases and criminal law interpretation function also make it of practical significance for its inclusion in the criminal law interpretation system.II. INVESTIGATION ON THE FUNCTIONAL ATTRIBUTES OF CRIMINAL GUIDING CASESSo far, the case guidance system in China has been established for nearly ten years, the functional orientation of the case guidance system in judicial practice concentrates the attention of a large number of scholars, because only by properly positioning it, can its role in the criminal legal system be studied and explained. The author believes that criminal guidance cases have both precedent attribute and interpretation characteristics. Therefore, its function has both the characteristics of precedent and the functional characteristics of criminal law interpretation.A. The Precedent Attribute of Criminal Guiding CasesAs for the guiding cases in the case guidance system, Professor Chen Xingliang believes that the so-called guiding cases are cases with the nature of precedents. In fact, precedent is a common term used by the two major legal systems. It is not necessary to deliberately adopt a term with Chinese characteristics, such as guiding case, in order to avoid distinguishing from the case law of the common law system and the case institution of the civil law system. Therefore, the case guidance system is China’s system of precedents, but it has the uniqueness of China. Professor Chen Xingliang tried to give China’s guiding cases the meaning of precedents based on the commonality of the precedents of the major legal systems, so that there is room for dialogue in the legal institutions of different legal systems. Nevertheless, the general understanding that regards guiding cases as legal precedents has to reflect the differences and similarities between guiding cases and precedents of other legal systems.The setting of the case guidance system in China is not consistent with the case institutions in other legal systems. First of all, although the guiding cases are issued after the selection by the Supreme People’s Court and the Supreme People’s Procuratorate, they are not the judgment documents tried by the issuance authority, some of which are even heard by the people’s courts at the grass-roots level, and after being issued by the Supreme People’s Court, they become the ‘guidance’ of courts at a higher level than the courts that hear the cases. This kind of case guidance system with the meaning of ‘the superior obeys the subordinate’ seems to violate the requirements of the precedent system; Second, these guiding cases are published after collection, selection, examination, research and compilation by the Supreme People’s Court and the Supreme People’s Procuratorate, which are consistent with the conclusions of the original judgment documents, but are processed, and whose reasons for the judgment are refined. Therefore, the author believes that it is a little far-fetched if the current cases are regarded as precedents, and the case guidance system is viewed as the precedent system with Chinese characteristics. ‘In terms of nature and function, the current guiding cases are not precedents, and there is still some distance between the case guidance system and the precedent system.’ If we make a rational orientation to it, it is rather to be said it is the embryonic form and the initial stage of the precedent system. However, guiding cases have the attribute of precedents, that is, guiding and compulsory guiding function, which is qualitatively different from ordinary cases. When judges try cases, they are required to follow and must follow the judging scale and judging standard of guiding cases.Then how much space is there for the ‘guidance’ of the guiding cases in the cases, the precedents of different legal systems have different criteria. As we all know, the interpretation of the law of the common law system is contained in the precedents, and the case law is the source of law in the common law system. Therefore, the interpretation of the law in precedents is more reflected in the interpretation activities of judges, while the concepts and reasons of interpretation are embodied in precedents, become part of the law, and have legal significance. In the civil law system represented by Japan, precedent is not the opinion of the law, but it still has a strong influence and is regarded as an important part for the judge to interpret the law. The precedent is, in some sense, the law of reality to some extent. It can be seen that the binding force of precedents in Japanese judicial trials is stronger than that of China’s non-guiding cases (ordinary cases) in case adjudication. However, the guiding case is different. Articles 9 to 11 of the Detailed Rules for the Implementation of the Provisions of the Supreme People’s Court on Case Guidance of 2015 clearly specify how guiding cases should be and how to be referred to in judicial trials. From this point of view, criminal guidance cases are given effects in a form similar to precedents in case law countries and statutory law countries, that is, giving the attribute of a precedent.B. Interpretation Features of Criminal Guiding CasesIn statutory law countries, only the interpretation and determination of the legal provisions can meet the needs for judicial trials of special cases. This is the rationality of the introduction of the case guidance system. The statutory law reflects the formation pattern of legal rule generated by design, while the case law reflects the formation pattern of legal rule generated by nature. The natural generation mode of case law shows that the unified law application function of precedents is the realization mode of case value from bottom to top. The existence value of precedent is the legal interpretation of specific case facts in the judgment of a case. Therefore, precedents should naturally belong to the interpretation of criminal law (in fact, this is the same in civil law countries), but in China, because the power of interpretation of criminal law is owned by the legislature and the highest judicial authority, judges have no explicit legal effect of interpreting the law. Whether cases are ‘precedents’ remains controversial. Nonetheless, this cannot obliterate the interpretive characteristics of a case, that is, although it does not possess judicial coercive force, nor can it be explicitly invoked in the judgment document, it will exert an implicit influence in the judicial case trial process. As a special form of case, the criminal guiding case certainly has the explanatory attribute. The original producer of the criminal guiding case is the judge, which has the value of case interpretation. The introduction of the case guidance system actually opened the way for judges to actively interpret the law in judicial practice. Under the requirements of the previous criminal law texts and normative criminal law interpretation models, judges can only apply articles in accordance with the statutory law and interpretation, and the discretionary space for applying the law is limited to the minimum. This way of weakening the judicial discretion of judges should not become the norm in justice. The establishment of the case guidance system is not so much an objective need of judicial practice, but rather a rational return of the judge’s judicial power, and a necessary way to achieve fairness in case judgments.The function of criminal guiding cases and the function of criminal law interpretation have their similarities. In other words, it can play a unique role in activating legislation, applying justice and responding to social needs, etc. Although there is a big difference between the carrier of the criminal guiding case and the interpretation of criminal law, it has its own unique features in the function of interpretation. Compared with the function of universal unified law application of criminal law interpretation from top to bottom, criminal guiding cases use the application mode of consistent judgments to similar cases through case adjudication from the bottom to top, and in the uniform application of the law, in the process of applying judicial practice, criminal guiding cases and criminal law interpretation have adopted different ways, but the goal is the same. Therefore, the criminal guiding case and the criminal law interpretation have their convergence in the function, but the difference is: the criminal guiding case is based on the realization of case justice in the function of activating legislation, applying justice and responding to social needs, and the criminal law interpretation is based on the setting of abstract judicial rules as the way of interpretation. In summary, although both of them have the above functions, they take very different approaches in the implementation of the function. The distinction in this way also completes the complementary functions of the two.
III. COMPLEMENT OF CRIMINAL GUIDING CASES TO THE FUNCTION OF CRIMINAL LAW INTERPRETATION
As mentioned above, the model of criminal law interpretation with power in China has its inevitable institutional dilemma in the judicial application, and criminal guiding cases may effectively complement the existing model of criminal law interpretation on the basis of realizing case value. Taiwan and Hong Kong SAR are the few areas where criminal law interpretation and precedent system coexist as an exception as part of China. ‘If there is no relevant law, or no law is unsuitable at the time, it can be remedied by interpretation. If there is no basis, then review the situation, refer to academic theory, and write a precedent.’ Alternatively, it can provide a reference for the interpretation of criminal law and the rank and effect of criminal law precedents. The author believes that China’s criminal guiding cases can be incorporated into the existing criminal law interpretation system, as an expansion and complement to the criminal law interpretation function, and play the criminal law interpretation function safely and effectively.A. Analysis on the Application Degree of Criminal Guiding CasesThe existing criminal law interpretation model cannot interpret the law in the form of text in some fields, but the criminal guiding case can be satisfied in the way of case judgment. ‘It is an important function of the case guidance system to give full play to the advantages of the Supreme People’s Court in interpreting laws through individual cases to promote the application of Chinese law.’ One of the manifestations of the activation of the legislative function is to clarify the vague semantics in the criminal law text and fill in the words with high probability. ‘When judicial interpretations are unable to fill loopholes in statutory law, it is no longer the power of legal logic to rely on, but the trial experience of the people’s courts at all levels.’ Although the interpretation of criminal law is a concrete interpretation of the text of the criminal law, the interpretation of criminal law is a relatively abstract description of the provisions based on a variety of specific case facts in accordance with the requirements of the context of criminal law. Therefore, it is impossible to achieve a straightforward and concrete understanding and interpretation of the provisions of criminal law in the case. In the study of guiding cases, the most direct aspect that scholars pay attention to is the role of criminal guiding cases in the judicial trial after they are empowered to be explicitly cited in judgment documents. Many scholars use big data to make statistics from multiple perspectives, investigating the number of judgment documents covered by guiding cases, the frequency of application, and the citations of the cause of action, etc. However, no matter whether the conclusion is optimistic or pessimistic, just relying on less than a hundred criminal guiding cases cannot fully ‘guide’ the over 1.29 million criminal cases that the Chinese court system needs to handle each year. As a result, some scholars conclude that half of the guiding cases are never cited, and even the ones that are cited are too low. But according to the empirical research conducted by relevant institutions, as of December 31, 2018, there are 18 criminal guiding cases being applied to 84 cases, which cannot be considered ‘too low’. However, compared with the application of other kinds of cases in the same period, 36 civil and commercial guiding cases are applied to 3,690 cases, and 15 administrative guiding cases are applied to 1,106 cases. In comparison, the application of criminal guiding cases appears to be too cautious.The contribution of guiding cases to the interpretation of criminal law is not only that it enables the meaning of the criminal law text to be reasonably and legally enriched in practice, but also that the enriched content of the case to the text is unforeseen in the criminal legislation process and is impossible to be achieved by the legal text itself or the abstract criminal law interpretation. Therefore, it is the best way to interpret the highly general meaning in criminal law legislation through guiding cases. Nevertheless, at present, the number of guiding cases is too small. Although it is given a ‘guiding’ function, its basic carrier is still the case. In China, the number of common cases is huge, and the number of guiding cases is too small; there are many common cases for judicial personnel to refer to, and few guiding cases are empowered to interpret the law; there are many criminal law interpretations made by judicial organs with power, and few guiding cases that can reflect the justice of individual cases. From the perspective of the application, if the individual interpretation function of guiding cases is to be exerted, their number should be close to that of criminal law interpretation at least. Otherwise, the function cannot reach the application strength of criminal law interpretation in the judicial process. If criminal guiding cases are regarded as ‘samples’ for judgments, their number determines that they cannot be widely used, because the criminal law under the principle of no penalty without a law requires strict fact comparison and prohibition of analogy interpretation, which limits its application space. On the other hand, compared with a large number of criminal law interpretation texts currently in force in China, it is clear that the latter’s high generality and orientation give judges relatively more discretionary powers, and make the application of guiding cases fail to meet public expectations.Although the criminal guiding cases of the Supreme People’s Procuratorate are carefully selected and refined, and the number of them is more than that of the Supreme People’s Court, and they are more active, but they fail to play their role and become blank cases. Based on this, the Provisions of the Supreme People’s Procuratorate on Case Guidance revised in April 2019 further refines and revises article 1 ‘in order to strengthen and standardize the case guidance work of procuratorial organs, and give full play to the role of guiding cases in regulating judicial case handling ...’ in the Provisions of the Supreme People’s Procuratorate on Case Guidance of 2015 ‘in order to strengthen and standardize the case guidance work of procuratorial organs, and give play to the guiding role of guiding cases in procuratorial case handling ...’, and limit the scope of application of the guiding cases to the procuratorial organs. Whether the guiding cases published by the procuratorial organs can achieve the desired effect still requires data analysis of the bill of indictment in the future. However, the use of the guiding cases issued by the Supreme People’s Procuratorate in this way (controlled within the contents of the procuratorial system) weakens the nature of precedent. In fact, in the guiding cases of the Supreme People’s Procuratorate, there are many excellent cases, and their guidance and reference roles are obvious. For example, the Justifiable Self-defense Case of Yu Haiming, although it is not cited in the subsequent adjudication of justifiable self-defense cases, its judicial influence is undoubtedly huge. Moreover, some cases are adopted as guiding cases by both the Supreme People’s Court and the Supreme People’s Procuratorate, such as the Case of Ma Le’s Trading on Undisclosed Information, which shows the high consensus of the Supreme People’s Court and the Supreme People’s Procuratorate in case selection. Therefore, how to make use of the advantages of the case resources of the Supreme People’s Court and the Supreme People’s Procuratorate will be an important issue that the case formulation agency needs to study.B. The Way of Legal Interpretation of Criminal Guiding CasesThe interpretation carrier of criminal law interpretation is an abstract text interpretation. Although it is specific compared with the criminal law text, it is abstract for the facts of cases that occur constantly. Thus, in the judicial application, there is a process for the judge to re-understand the interpretation of the criminal law. The difference in the description mode of criminal law interpretation can be embodied in enumeration interpretation, interpretive interpretation and positioning interpretation. However, if we refer to the text of the criminal law, we will find that this interpretation technique is also adopted and embodied in the legislation. Therefore, the interpretation of the criminal law can be understood as the ‘criminal law with detailed regulations’ in a certain sense. The soil for criminal guiding cases, judgment, is different. Its interpretation concept and content exist through the reason for the judgment.Professor Chen Xingliang believes: ‘When a judgment is established as a precedent, it is usually accompanied by an appropriate ‘gist’, and the legal principles and rules implicit in the precedent are all embodied here. Hence, the precedent still bears the stigma of statutory law, which guides judges and the public to apply through the form of judgment gist, and plays the role of judicial interpretation to a certain extent.’ In China’s criminal guiding cases, there is also the ‘gist’, that is, the reason for the judgment. The reason for the judgment in a guiding case actually also uses the expression of ‘interpretation reason’ in the interpretation of the criminal law. The difference is that the reason for the judgment is an essential element in each guiding case, and it is also the essence of the guiding case. However, the reason for interpretation is not an essential element in the text of the interpretation of the criminal law. The interpretation reason of the criminal law legislative interpretation can only be seen in the corresponding interpretation draft, and the interpretation reason of the judicial interpretation reflected in the criminal law interpretation text is even less. Only a few exist in the interpretive documents issued in the form of Minutes and Official Reply. Both the judgment reason and the interpretation reason are the ways to specifically and comprehensively explain the connotation and interpretation purpose of the criminal law, but the judgment reason is more targeted and directional to the pursuit of justice in the case. Therefore, the solution for the judge is not only the making of this judgment, but also the effect on the prediction and application of future legal facts. Among the reasons for the judgment, the judge must choose one of the many viewpoints to apply. Different from the theoretical interpretation, this choice not only has a legal effect, but also may become a template for the application of the law in similar cases in the future to settle disputes.Criminal guiding cases require reasoning, and the rational language is considered to be a formation manifestation of judicial judgment rules to guide the handling of similar cases. This puts forward high requirements for the case to become a guiding case. There are two issues that need to be solved: first, whether the main points of the judgment in the existing guiding cases reach the standard of ‘judgment rules’; second, how the guiding cases have an independent character compared with the criminal law interpretation in function.The primary function of the case guidance system is to create judicial rules, because only judicial rules can provide a reference for the subsequent trial of the same or similar cases. The judgment rules that may be generated by criminal guiding cases are reflected in the judgment reasons. Compared with the original judgment documents, judgment reasons are passed through the rewriting of the case recommender (organ) on the basis of the original judgment documents without changing the judgment conclusions, making them more valuable for reference. For example, in the Case of Ma Le’s Trading on Undisclosed Information, the reason for the judgment is that ‘the circumstance in which statutory penalty is invoked for the crime of trading with undisclosed information as stipulated in paragraph 4 of article 180 in the Criminal Law should be a reference to all statutory penalties for the crime of insider trading and leaking inside information in the first paragraph, that is, the crime of trading with undisclosed information should have two situations of ‘serious circumstances’ and ‘particularly serious circumstances’ and two sentencing levels.’ The reflected judicial rules confirm that the quotation of the preceding paragraph is the quotation of all statutory penalties, not part of the statutory penalties. However, not all guiding cases achieve this. For example, in Li Sen, He Limin, Zhang Fengbo and Others’ Case of Damaging Computer Information System, the main point of the judgment is ‘environmental quality monitoring system belongs to a computer information system. Using cotton yarn or other items to block environmental quality monitoring sampling equipment, interfering with sampling, and causing serious distortion of monitoring data constitutes a crime of damaging computer information systems’. It just sums up the conclusion of the judgment and does not rise to the judicial rules. In other words, the guiding case satisfies the interpretive function of case judgment, but it does not meet the requirements of judicial rules to guide similar cases; it only achieves the expansion of the semantic content of criminal law texts to ‘fill in the legal gaps’, but does not achieve the higher level requirements of ‘being leading and innovative, reflecting the general rules and new contributions of the application of the law’. As a result, the guiding case can play a guiding role only in a very small scope, and cannot be widely cited. Therefore, in the selection of criminal guiding cases in the future, it is necessary not only to consider the increase of the citation rate and application rate in the application, but also to examine whether they can form adjudication rules. Thus, the criminal guiding cases put forward higher expectations than ever on the professional quality of judges: first, improving the professional quality of judges, mainly the interpretation ability and academic research ability of judges; second, cultivating and training the application of reason for judgment. Only with the improvement of the quality of judges can the function of judicial application of criminal guiding cases be fully exerted.C. The Functional Separation of Criminal Guiding Cases and Criminal Law InterpretationThe case guidance system uses cases to guide the judgment of similar cases, and adds a ‘specific to concrete’ reference to the ‘abstract to concrete’ law application. Since criminal guiding cases must be produced during the trial, the lag in the Criminal Law and the interpretation of the criminal law is eliminated so as not to produce the phenomenon of ‘ex post facto law’. In terms of the effect of the application of justice, the interpretation of the criminal law has a legal effect, which is only lower than the lower effect of the Criminal Code. Nonetheless, in the face of numerous and complicated case facts, on the basis of the long-term coexistence of standardizing criminal law interpretation and criminal guiding cases, their different description methods enable the labor division of the two in the interpretation to have their own focus. After the future case guidance system is further improved and the number of criminal guiding cases is greatly expanded, such as the interpretation space reserved in the criminal law text, a considerable part of it can be completely resolved by the guiding cases, especially the emergence of miscellaneous provisions, such as the narrative method of ‘other ... plots’, its supplementary explanations to these probable provisions, can be completely resolved and assumed by guiding cases. The replies made to individual cases in the interpretation of the criminal law can no longer be issued in the high-level form of the interpretation of the criminal law in the future. Instead, they will be regulated by criminal guiding cases. The features of specificity, individual case, and rationality of criminal guiding cases can not only solve the problem of ‘miscellaneous interpretation’ in the interpretation of the criminal law, but the specificity of individual case judgments makes it possible to achieve multi-case interpretation in a specific crime, which is richer and more direct than the interpretation of the criminal law, and also makes judges have a clearer reference. Regarding the quotation and understanding of provisions in the General Provisions of the Criminal Law, and the abundant reasoning in the judgment reasons will also activate the rule setting of the General Provisions of the Criminal Law. Therefore, the division of labor between criminal guiding cases and the criminal law interpretation is the development trend of the criminal law interpretation system in the future. The number of criminal law interpretations will show a trend of shrinking with the issuance of criminal guiding cases. The author believes that this will be the future development direction of criminal law interpretation and criminal guiding cases.Then, if the interpretation of the criminal law can meet most of the judicial trial requirements in the criminal justice process, is it necessary to cite guiding cases to demonstrate its authority? According to regulations, the interpretation of China’s criminal law has the interpretation effect of ‘quasi-legislation’, that is, as long as there is a criminal law interpretation related to the case, it must be cited. Hence, in the judgment reasons of criminal guiding cases, there is a common phenomenon that not only the provisions of the criminal law are cited, but also the criminal law interpretation texts. For example, Guiding Cases No. 102, 103 and 104, the three cases all involve the crime of damaging computer information systems. In the judgment reasons, they all cite article 11 of the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate of Several Issues on the Application of Law in the Handling of Criminal Cases about Endangering the Security of Computer Information Systems. This shows two characteristics: first, these three guiding cases have not yet reached the ‘guidance’ standard, and only reflect the differences between the individual cases; second, these three cases are not only the interpretation of the criminal law text, but also cause the ‘re-interpretation’ of the cited criminal law interpretation in fact. Professor Chen Xingliang points out: ‘Although both judicial interpretations and the main points of the judgments provide rules, relatively speaking, the level of judicial interpretation is higher than the main points of the judgment. In this case where the judicial interpretation provisions overlap with the main points of the judgment, only the provisions of the judicial interpretation can be invoked, and it is impossible and unnecessary to refer to the main points of the judgment. In this way, the main points of the judgment of the guiding case are laid aside and neglected.’ The duplication of the institutional functions of the criminal law interpretations and criminal guiding cases will inevitably affect the application effect of criminal guiding cases. The legal rules embodied in the guiding cases should be innovative, that is, the main points of the judgments in the guiding cases should not be a simple disclosure of the normative text, but should reflect appropriate normative elements. Therefore, in the selection process of criminal guiding cases, it should be a mitigating way to choose the typical cases that the criminal law text and the criminal law interpretation are ‘out of reach’ in order to have a different character from the existing criminal law interpretation.D. The Response of Criminal Guiding Cases to Criminal PolicyIn judicial trials, the formation of judgment conclusions will inevitably be affected by criminal policies, and this indicative role is direct and explicit. Guiding cases not only mean the guidance on the application of the law in justice, but also assume the functions of educating the public and preventing crimes. These functions not only exist, but should also be reflected. Responding to social concerns and judicializing criminal policies does not mean the court’s rigid understanding of policies, but through the issuance of criminal guiding cases, the abstract and professional language of the law becomes a living reality, and the abstract becomes intuitive, responding to and guiding people’s unlawful behavior. The enlightenment significance of criminal guiding cases cannot be ignored. For example, the Intentional Homicide Case of Li Fei is a landmark case in the field of death penalty application. In the case of intentional homicide caused by civil conflicts, the defendant’s criminal means are cruel, and the defendant is a recidivist, which should be sentenced to death, but the defendant’s relatives actively assist the public security organs in arresting him and actively pay compensation, although the victim’s relatives do not forgive. However, from the perspective of resolving social conflicts as much as possible, the defendant is sentenced to death with a two-year suspension of execution, and at the same time, commutation is limited. It can be seen from this that the result of the defendant’s death sentence with a reprieve is not only based on the requirement of criminal policy to restrict the application of the death penalty and restricted by legal provisions; the legal impact of controlling the application of the death penalty on the public and the consideration of the social effect of resolving social conflicts leads to the generation of case judgment. Therefore, the function of criminal guiding cases in responding to social needs is more intuitive than the criminal law and the interpretation of the criminal law, and the scope of influence is larger. Similarly, the impact of social needs on criminal guiding cases is also different from the former. For another example, Yu Haiming’s Justifiable Self-defense Case, Zhu Fengshan’s Intentional Injury (Imperfect Self-defense) Case, Chen’s Justifiable Self-defense Case, and Yu Huan’s Intentional Injury Case use the main points (gists) of judgments of the criminal guiding cases to distinguish the boundary between justifiable self-defense and imperfect self-defense in detail from different perspectives. They not only belong to the cases that the society pays wide attention to, but also play immeasurable guiding roles in the judicial practice. The main points of the judgment in Yu Huan’s Intentional Injury Case state that ‘if a case of imperfect self-defense is caused by the victim’s illegal infringement that seriously degrades the dignity of others or desecrates human relations, full consideration should be given to this when sentencing to ensure that the judicial decision can not only withstand the test of law, but also conform to the concept of social fairness and justice. The reason why there are four guiding cases extracted by the Supreme People’s Court and the Supreme People’s Procuratorate in the justifiable self-defense cases is related to the judiciary’s urgent need to determine the boundary between justifiable self-defense and imperfect self-defense in such cases over the years. If it is the former, no crime is established; if it is the latter, it is punished by the criminal law. Regarding the perpetrators who are being illegally infringed, what standards are required for justifiable self-defense, and whether the people dare to legitimately resist the illegal infringements are closely related to the judgment results of such cases. Thus, criminal guiding cases not only meet social concerns and integrate the essence of criminal policy and public morality feelings into the judgment, but also enable the public to get legal education through the judgment and promote the process of the rule of law.Therefore, the formation of the criminal case guidance system with criminal guiding cases as the content is the need of the process of the rule of law in China, and has great value for its existence. Although the current issued criminal guiding cases are extremely limited, in a short period of time, compared with the numerous criminal law interpretation provisions, the criminal guiding cases are only in the ‘toddler’ stage. However, the creation and perfection of a judicial system must undergo a relatively long development process, and must allow its own amendment and exploration. Based on this, we can look forward to the formation of China’s criminal law interpretation system in the future. The criminal law interpretation model that the criminal law interpretation and criminal guiding cases coexist will not only have its effect on China’s judicial practice, but also maximize the function of criminal law interpretation. It will also contribute a criminal law interpretation model with Chinese characteristics to the criminal law interpretation systems of countries around the world, and play a huge role in the process of the rule of law in China.
