Circular of the Supreme People's Court on Release of the First Batch of Guiding Cases

Circular of the Supreme People's Court on Release of the First Batch of Guiding Cases


Circular of the Supreme People's Court on Release of the First Batch of Guiding Cases

Fa [2011] No. 354

December 20, 2011

Higher Courts of all provinces, autonomous regions and municipalities directly under the central government, Military Court of the People's Liberation Army, Production and Construction Corp Court of Higher Court of Xinjiang Uigur Autonomous Region:

For the purpose of implementing the judicial reform measures concerning establishment of guiding case system required by the central government, the Supreme People's Court printed and distributed the Provisions on Guiding Case Related Work (the "Provisions") on November 26, 2010. The release of the Provisions symbolizes the preliminary establishment of guiding case system with Chinese characteristics. All sectors have paid intensive attention to and give strong support for the implementation of the Provisions. All higher people's courts have, pursuant to the requirements under the Provisions, recommended and reported guiding cases to the Supreme People's Court actively. The Supreme People's Court has established a special office of guiding case related work to strengthen and coordinate the research on guiding cases. Recently, the Judicial Committee of the Supreme People's Court has, after discussion and voting, decided to designate four cases including (without limitation) the brokerage contract dispute between Shanghai Zhongyuan Property Consultation Co. Ltd and Tao Dehua as the first guiding cases and to publicize them for reference. The relevant issues are hereby notified as follows:

I. Master the guiding principles of the guiding cases accurately
1. The case concerning the brokerage contract dispute between Shanghai Zhongyuan Property Consultancy Co., Ltd and Tao Dehua is introduced for the purpose of providing guidance for resolution of disputes arising from "private transaction by avoiding intermediary" between the buyer and the intermediary in connection with second-hand property transaction. The case confirms that: under a brokerage contract, the buyer is prohibited to use the information of source of property provided by an intermediary, but enters into binding purchase agreement with the seller without the participation of the intermediary, that is, the buyer shall not breach by means of "private transaction without participation of intermediary". However, if any certain source of property is released by several intermediaries, and the buyer accesses to such information by above mentioned due means, then the buyer shall have the right to select an intermediary with lowest service fee and best service to cause the success of the transaction, which is not a breach of "private transaction without participation of intermediary". The decision of this case not only protects the legal rights and interests of intermediary companies, promote the healthy development of intermediary service market and safeguard the good-faith transactions, but also promote the fair competition among property transaction intermediary companies, increase the quality of service and protect the legitimate rights and interests of consumers.
2. The case concerning the dispute concerning the purchase and sale contract between Wu Mei and Sichuan Meishan Paper Co., Ltd is introduced for the purpose of providing guidance for resolution of the relation concerning the enforceability of mediation agreement reached not through litigation procedure and the decision of the court. This case confirms that: if the parties to a contract reach mediation agreement not via litigation procedure and withdraw the appeal during the hearing of second instance, then the parties shall implement such agreement. If any party fails to implement or does not, in complete manner, implement such mediation agreement, then the other party may make application to the competent People's Court for enforcement of the valid and effective decision made by the court in the first instance. The decision of this case not only respects the discretion of parties to the subject matter of the dispute, underlines the rules of good faith of parties to a contract, but only safeguards the authoritativeness of the valid and effective decision of the people's court.
3. The case concerning the acceptance of bribery by Pan Yumei and Chen Ning is introduced to provide guidance for hearing cases concerning receiving bribery through new means and methods. This case confirms that: in the event that any public servant receives bribery in the name of "co-establishment" of a business or by means of transaction, or receives bribery by undertaking to "seek benefits for other parties" but not seek benefits for himself or herself, or return the bribery to cover the facts of receiving bribery, then the recognition of crime of accepting bribery will not be affected. The decision of this case provides express guidance for trial of cases of accepting bribery through new means and methods occurred in recent years, which will play important role on punishing the crimes of accepting bribery, finding new cases of accepting bribery occurred under new situations and promoting the deep implementation of works of anti-corruption.
4. The case concerning the intentional murder by Wang Zhicai is introduced to provide guidance for the application of law for cases where the criminals are sentenced capital death penalty but stay of execution and are restricted from reduction of penalty. This case confirms that: the system of restriction on applying the penalty reduction system to the recidivists who are sentenced death penalty but stay of execution and the criminals who are sentenced death penalty but stay of execution for committing any of the 8 gross violent crimes as set out in Amendments to the Criminal Law (VIII) may be applied to the criminal offenses committed before April 30, 2011; For any extremely severe offenses, the criminals shall be sentenced death penalty and shall be executed immediately; In the event that the victim (s) of any criminal offense reacts strongly but the accused satisfies the conditions for lenient punishment as provided for by the law or at the discretion of the court and the principle of the balance between a crime and a punishment may be realized if the criminal is sentenced death penalty but stay of execution meanwhile is restricted the reduction of penalty, then such criminal may be sentenced death penalty but stay of execution and restriction of reduction of penalty. The decision of this case will benefit the implementation of the criminal policy of balance of punishment and mercy, which will not only punish those violating grossly the criminal law, but also further limit the application of death penalty in strict manner to increase the harmony of society and decrease the disharmony of society to the largest extent, therefore promoting the construction of a harmonious society.

II. Exert actually the purpose of the guiding cases
The people's courts of each level are requested to organize judges to study above mentioned guiding cases carefully, understand and master the principles and guiding purposes of such cases accurately, increase the awareness of application of such cases, and hear all similar cases in strict accordance with such cases based upon advanced judicial philosophy, fair application of discretion and scientific hearing methods, so as to further increase the quality and efficiency of hearing of cases, ensure the organic uniform of the legal effect and the social effect of the decisions of relevant cases, and safeguard the harmony and stability of society. The people's courts of each level shall pay highly attention to the guiding purpose of these cases and select meticulously, recommend actively and report timely guiding cases to the Supreme People's Court to increase the quality of the selected guiding cases successively and advance the stable operation of guiding cases; All people's courts are requested to exert fully the guiding function of public opinions to publicize the meaning and effect of guiding case system so as to create a nice atmosphere where all circles understand, care and support the hearing activities of the people's courts.
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