Why Do Chinese Courts Accept Precedents And The Judicial Decision Making?

Common law is formed on the basis that courts will make decisions based on past judgments (Letwin, 2011). Cases with similar circumstances will be ruled in the saw way. In most cases the common law will combine with statutory and constitutional law in order to make decisions. Common law bases on the fact that court cases will be primarily ruled on precedent (Aspen Publishers, 2010). The common law is crucial to understanding almost all important

Judicial precedent as a whole is the way in which English law provides and maintains consistency and predictability. This assumption of consistency and predictability through judicial precedent allows the law to exude a sense of certainty, fairness and by extension some amount of flexibility; but the question is, how can something which is consistent and predictable to such a degree that it is considered certain exhibit flexibility? After all one would think that in order to be consistent and predictable there must be rigidity involved.

To be sure, modern laws are made to express the general will, a will that aims at the common good. This means that laws in most cases intend to protect every social member’s rights under the principle of justice and fairness. For telling examples one need to look no further than American judicial system. The access to the two courts systems, one federal court and one state court, provides citizens with the greatest potential to have their legal problems

The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is

* Case Law/Precedent/STARE DECISIS – Case Law is the doctrines and principles announced in cases. It governs all areas not covered by statutory law or administrative law and is part of our common law tradition. A Precedent is a decision that furnished an example of authority for deciding subsequent cases involving identical or similar legal principles or facts. For example, when a judge is making a ruling on a case, the judge may refer back to a similar case to see what the previous ruling was to keep the result similar. Stare Decisis is the practice of this process, deciding new cases with reference

In both China and the United States, the judicial system is composed of courts that contain several different levels. However, there is a basic structural difference between the Chinese and American legal systems. In America, the three branches of government are supposed to be separate, so that the court system is supposed to be beyond party politics and partisan antics. This separate system of checks and balances does not exist in China. On the contrary, the judicial branch is not independent. It is meant as an extension of the government, and therefore of the single political party with any power in China. The distinction between American judicial independence and Chinese judicial dependence may be one of the most critical differences between the two systems because the American judicial branch is meant to act as a check and balance with the other systems, while China's three-part system has the same branches but lacks the same independence.

When a decision is made for a new dispute, in a common law system, the judgement is passed as a precedent. A precedent is a verdict made by legal authorities for a principle or rule that provides guidance for any future cases having similar issues. Precedents are supported by the doctrine of precedent also known as ‘stare decisis’. ‘Stare decisis’ is a Latin term translating to ‘the decision stands’. This doctrine is a legal principle that judges are obliged to follow and respect (Milgate P, 2013). This implies, that any future cases with similar circumstances should have the same verdict (punishment/decision etc.) as the precedent. Precedents are followed to ensure fair treatment and so that law is developed in a consistent manner providing older cases with the authority and structure for current judges to make their decisions. When there is no precedent a decision is met through existing statute laws

It must be possible to extract the ratio decidendi of the precedent. The ratio decidendi (reason for a decision) is the point of law on which the previous decision was based. Obiter dicta are remarks of the judge, which are not essential for the disposal of the case. They tend to be hypotheses indicating what his preferred decision would have been if the facts had been slightly different. The doctrine of judicial precedent is less rigid in the criminal courts.

     Depending on the case and its higher degree of factual similarity worser the crime the harsher the punishment. The role of precedents tells "a prior case must meet two requirements to be considered binding precedent". No case can go off subject no matter what they use

The last primary source of law is Case Law. Case law is laws created from former cases or existing laws (Sources of Law, 2017). Case law is rules created from court decisions. Case law, also be known as precedent or common law, is the body of prior judicial decisions that guide judges deciding issues before them. Depending on the relationship between the deciding court and the precedent, case law may be binding or merely persuasive (U.S. Case Law n.d.). An example of this law would be a civil suit. Case law is rules based on court decisions.

It's referring to precedents. Precedents are previous decisions of the court that need to be followed by courts in the same or lower in the hierarchy. The court must give consideration but there is no rule on how it should apply it to the facts of the case at hand.

The doctrine of Judicial precedent applies the principles of stare decisis which ‘lets the decision stand’. ‘Whenever a new problem arises in law the final decision forms a rule to be followed in all similar cases, making the law more predictable’ making it easier for people to live within the law.

In its Bato Star judgment, the Constitutional Court referred to the interpretive approach followed in the Jaga v Dönges, a notorious case from the 1950s. In this essay, I argue that the recent comments by the Constitutional Court about the case clearly show that the Jaga judgment is no longer relevant to the interpretation of statutes after the democratic transformation.

In the statement, it is mentioned that the great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions. A case to illustrate this point would be W v Registrar of Marriages [2013] HKCFA 39 (CFA).

The doctrine of judicial precedent is based on the principle of stare decisis which means ‘to stand by what has been decided’. It is a common law principle whereby judges are bound to follow previous decisions in cases where the material facts are sufficiently similar and the earlier decision was made in a court above the current one in the court hierarchy. This doctrine of precedent is extremely strong in English law as it ensures fairness and consistency and it highlights the importance of case law in our legal system. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."