A lecturer at Stanford Law School since 2007, Professor Mei Gechlik is the Director of the China Guiding Cases Project, an initiative that “aims to advance knowledge and understanding of Chinese law and to enable judges and legal experts both inside and outside of China to contribute to the evolution of Chinese case law through ongoing dialogue on ‘guiding cases’ released by China’s Supreme People’s Court.” I recently had the opportunity to sit down and talk with Professor Gechlik about how this project came about and where she sees it going in the future.
Q. How did this project come about? Why did you feel it was important to translate these cases into English?
MG: When China’s highest court, the Supreme People’s Court issued a rule more than a year ago stating that courts in China should refer to guiding cases when they handle similar cases, I sensed that China’s legal system was on the cusp of something significant. I wanted to make these cases available in English. Fellow faculty members confirmed that this was too important not to pursue. With some seed money and the support of several faculty members, I approached Dean Larry Kramer, and the project was launched within two weeks.
Q. Tell me a bit about your team here and in China.
MG: We are fortunate to have an esteemed panel of advisors and passionate students on our team. Our advisory board consists of 20 experts from laws schools in the US, Hong Kong, and China including Harvard, Tsinghua University, Peking University, Hong Kong University. We also have an honorary advisory board of leading judges from China and the US, including Supreme Court Justice Ruth Bader Ginsburg.
We started with a team of 10 Stanford Law School students and 15 law school students from the top universities in China, but students kept approaching me wanting to get involved in the project. I could see that law students from Mainland China wanted to be agents of positive change in a non-confrontational manner. However, we learned from the first batch of translated cases that our initial approach was not sufficient. Although the Chinese students were excellent, none were trained translators, so some terms may have been omitted in the translation. My philosophy is that we are not in the position to improve the expression. We should use literal translation if it works. If it does not, we should keep it as close to literal as possible because every word counts in legal cases.
We also have engaged students from the Monterey Institute of International Studies, the country's top translation school. They were enthusiastic about learning how to handle legal documents and began putting the second batch of guiding through 5 levels of translation. We are very pleased with the products, but this is still a learning process for us.
Q. Have there been court decisions in which the guiding cases have not been referred to?
MG: Let me first tell you a story. In Feb. 2011, I was invited to give a lecture to approximately 100 basic trial level court judges. They knew I would be discussing guiding cases, but when I asked how many had heard about guiding cases, less than half raised their hands. This shows that the Supreme People’s Court has not extensively publicized the guiding cases system, and that much needs to be done before judges know how to use the guiding cases.
During my talk, one of those judges asked, “Are we obligated to refer to guiding cases? What’s the consequence if I fail to refer to guiding cases? Will my bonus be deducted?” As a result of this ambiguity, I invited legal experts to write commentary on what they think guiding cases are supposed to be. We have commentary contributed by the President of the court that I visited. She argues in a strategic manner that judges should at least “mention”, if not “cite,” guiding cases in judgments. This is a significant suggestion in a jurisdiction that doesn’t even encourage judges to refer to constitutional provisions in Chinese judgments.
Q. What do you think is the motivation behind establishing the guiding cases system?
MG: I see this as China’s way of introducing an innovative reform measure to see whether it will improve the quality of adjudication. Their goal is to release guiding cases from time to time and test the legal community’s response. It’s a relatively progressive method. If the feedback and response is not so controversial, they will feel more confident to release new guiding cases. It’s a Chinese way of thinking, to move along gradually rather than to shock the system. It’s very much as Deng Xiao-Ping, China’s paramount leader and reformer, once put it-- China’s leaders, in bringing about changes, managed to “cross the river by feeling for the stones.”
Q. Two issues that the West is most interested in with regard to China include intellectual property and human rights. What kinds of cases have been selected so far?
MG: The Guiding Cases Work Office, within the Supreme People’s Court, is responsible for the selection, examination, and submission for approval of guiding cases. To date there have been 8 cases released, 4 in December 2011 and 4 in April 2012. Currently the cases include 2 civil law cases, 2 criminal law cases, 2 administrative law cases and 2 other cases. Eventually, I think, guiding cases will cover all topics that have legal implications, including intellectual property and human rights. You could say that Guiding Case number 4 -- a criminal law case that questions under what circumstances the death penalty may be suspended -- could be viewed as a human rights case.
Q. How do you see this project growing?
MG: When we first launched on Jan. 9, 2012, no one really knew the significance. During the first week after our website launched, we received 2000 hits. We received another 1000 hits to download our products when we launched the second batch of cases. Most of our users are in China and the US, but the user base in Europe is growing. Even now, we don’t know exactly what the impact will be, we can only try our best to do something that could be significant.
In terms of our team, we started with about 25 students. When the second set of cases came out in May 2012, the team had grown to over 60 students. The products available on our website have expanded to include brief comments on the first four guiding cases, commentaries written by legal experts, and summaries to help lay people understand different areas of Chinese law.
We have recently authorized a Hong Kong-based legal database to make our translated cases and commentaries available in their database. So, our work is getting more exposure, which is good. When we have enough guiding cases, I would like to organize a symposium or conference for panelists to discuss the implications of particular guiding cases.
To read more about the China Guiding Cases Project at Stanford Law School, visit: http://cgc.law.stanford.edu/