Guiding Cases in Perspective TM 指导性案例透视...GC32 quite clearly provides the adjudication reasons of the Shanghai Pudong New Area People’s Court, but there are still

Copyright 2016 by Stanford University

Guiding Cases in PerspectiveTM

指导性案例透视TM

Dr. Mei Gechlik

Founder and Director, China Guiding Cases Project

Minmin Zhang

Associate Managing Editor, China Guiding Cases Project

Liyi Ye and Siqing Li

Editors, China Guiding Cases Project

Guiding Case No. 32: CGCP Annotations

April 30, 2016 Edition∗

∗

The citation of this piece is: Mei Gechlik, Minmin Zhang, Liyi Ye, & Siqing Li, Guiding Case No. 32:

CGCP Annotations, STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM, Apr.

30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32/. The authors thank Oma Lee for assisting in

the translation of the Chinese version of this piece into English and Jordan Corrente Beck for editing the English

version.

Guiding Cases in PerspectiveTM is a unique serial publication of the China Guiding Cases Project that

identifies the original judgments selected by the Supreme People’s Court, examines their transformation into

Guiding Cases, and explores the treatment of the Guiding Cases in subsequent cases.

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I. The Process of Selecting Guiding Case No. 32

A certain ZHANG and a certain JIN, A Dangerous Driving Case (“Guiding Case No.

32” or “GC32”) is one of the guiding cases (“GCs”) included in the eighth batch of GCs

released by the Supreme People’s Court (“SPC”) on December 18, 2014.1 Its original

judgment is the (2012) Pu Xing Chu Zi No. 4245 Criminal Judgment rendered by the

Shanghai Pudong New Area People’s Court.2

This case was selected as a GC through the following process (see Chart 1):3

1. The case was reported by the Shanghai Pudong New Area People’s Court to the

Higher People’s Court of Shanghai Municipality, whose adjudication committee then

considered this case to be of typical nature and decided to recommend it as a

candidate GC to the Office for the Work on Case Guidance of the SPC.

2. After research and discussion, the Office for the Work on Case Guidance of the SPC

sent the case to the First and Fifth Criminal Tribunals of the SPC, as well as the Legal

Affairs Bureau and the Traffic Administration Bureau of the Ministry of Public

Security for comment. They all agreed that this case should be a GC. On November

25, 2014, the Adjudication Committee of the SPC agreed to select it as a GC and

released it on December 18.

1 《张某某、金某危险驾驶案》 (A certain ZHANG and a certain JIN, A Dangerous Driving Case),

STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC32), Mar. 24, 2015

Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32. 2 《张某某、金某危险驾驶案》（2012）津高民三终字第 3 号 (A certain ZHANG and a certain JIN,

A Dangerous Driving Case,(2012) Jin Gao Min San Zhong Zi No. 3), STANFORD LAW SCHOOL CHINA GUIDING

CASES PROJECT, Guiding Cases in PerspectiveTM

, Guiding Case No. 32 Original First-Instance Judgment, Apr.

30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32/. 3 See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme

People’s Court), 指导案例 32 号《张某某、金某危险驾驶案》的理解与参照 (Understanding and Referring

to Guiding Case No. 32, A certain ZHANG and a certain JIN, A Dangerous Driving Case), 《人民司法·案例》

(THE PEOPLE’S JUDICATURE·CASES), Issue No. 18 (2015).

For the process of selecting Guiding Cases, see《最高人民法院关于案例指导工作的规定》

(Provisions of the Supreme People’s Court Concerning Work on Case Guidance), passed by the Adjudication

Committee of the Supreme People’s Court on Nov. 15, 2010, issued on and effective as of Nov. 26, 2010,

STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition,

http://cgc.law.stanford.edu/guiding-cases-rules/20101126-english/.

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Chart 1: The Process of Selecting Guiding Case No. 32

II. Comparison Between Guiding Case No. 32 and Its Original Judgment

1. Basic Facts of the Case

Based on the “Basic Facts of the Case” section of GC32, the following table compares

the similarities and differences between GC324 and the original first-instance judgment:

Guiding Case No. 32

Original First-Instance Judgment

1

On February 3, 2012, at approximately 20:20, a certain

ZHANG and a certain JIN, the defendants [in this case],

met to enjoy the thrill of driving [their] high-power

motorcycles. [Before beginning to drive, they] agreed:

“the intersection of Lujiabang Road and South Henan

Road is the destination, and whoever arrives first will

wait for the other”.

Essentially the same.

2

Then, the unlicensed ([and] modified) Honda high-

power two-wheeled motorcycle driven by ZHANG and

the (modified) Yamaha high-power two-wheeled

motorcycle with a counterfeit plate driven by JIN

departed from a dealership [located at] 99 Leyuan Road,

Pudong New District, Shanghai Municipality.


4 《张某某、金某危险驾驶案》(A certain ZHANG and a certain JIN, A Dangerous Driving Case),

STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, Guiding Cases in PerspectiveTM

, Guiding Case No.

32 Highlighted Edition, Apr. 30, 2016, http://cgc.law.stanford.edu/guiding-cases/guiding-case-32/.

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Guiding Case No. 32


[ZHANG and JIN] arrived at the intersection of

Yanggao Road and Jufeng Road, turned around, and

[then] traveled from north to south along Yanggao

Road. [The two subsequently] crossed the Nanpu

Bridge and got off on Lujiabang Road. Afterwards,

[they drove] along South Henan Road through the East

Fuxing Road Tunnel and Zhangyang Road to return to

ZHANG’s residence. The entire route was 28.5

kilometers and passed through multiple bus stations,

residential areas, schools, and large-scale supermarkets.

3

While driving in congested traffic, the two defendants

repeatedly merged into lanes, wove in and out of traffic,

ran multiple red lights, and exceeded speed [limits] by a

large margin. When they arrived at the intersection of

Lujiabang Road and South Henan Road, ZHANG and

JIN encountered an on-duty police inspection, [from

which they] fled, driving along South Henan Road

through the East Fuxing Road Tunnel and Zhangyang

Road. Along [ZHANG and JIN’s route], at the South

Yanggao Road-Pujian Road overpass (60 km/h speed

limit), ZHANG was driving at a speed of 115 km/h and

JIN was driving at a speed of 98 km/h; on the deck of

the Nanpu Bridge (60 km/h speed limit), ZHANG was

driving at a speed of 108 km/h and JIN was driving at a

speed of 108 km/h; on the approach off-ramp from the

Nanpu Bridge to Lujiabang Road (40 km/h speed limit),

ZHANG was driving at a speed of more than 59 km/h

and JIN was driving at a speed of more than 68 km/h;

and at the East Fuxing Road Tunnel (60 km/h speed

limit), ZHANG was driving at a speed of 102 km/h and

JIN was driving at a speed of 99 km/h.


4

On February 5, 2012, at approximately 21:00, defendant

ZHANG, after being arrested for questioning, truthfully

confessed to the aforementioned facts and provided a

public security organ with defendant JIN’s cellular

phone number. JIN, after receiving notice by phone

from the public security organ, voluntarily surrendered

on February 6 at approximately 21:00 and truthfully

confessed to the aforementioned facts.


Overall, the “Basic Facts of the Case” section of GC32 is largely based on the original

first-instance judgment.

2. Reasons for the Adjudication

The Shanghai Pudong New Area People’s Court rendered the first-instance judgment:

[the court determines that] defendant ZHANG committed the crime of dangerous driving and

[therefore] sentences [him] to four months’ detention with four months’ suspension of

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sentence and fines [him] four thousand renminbi; [the court determines that] defendant JIN

committed the crime of dangerous driving and [therefore] sentences [him] to three months’

detention with three months’ suspension of sentence and fines [him] three thousand renminbi.

After the judgment was pronounced, the two defendants did not appeal. The judgment has

already come into legal effect.

GC32 quite clearly provides the adjudication reasons of the Shanghai Pudong New

Area People’s Court, but there are still differences. Based on the “Reasons for the

Adjudication” section of GC32, the following table compares the similarities and differences

between GC32 and the original first-instance judgment:

Guiding Case No. 32


1

According to Article 133A, Paragraph 1 of the Criminal

Law of the People’s Republic of China, “where [a

person] drives a motor vehicle on a road to chase-and-

compete under execrable circumstances,” [this]

constitutes the crime of dangerous driving. “Chase-

and-compete driving” under the Criminal Law generally

refers to acts where the perpetrators, [at least] two

people, out of competitiveness, pursuit of thrill,

vindictiveness, or other motives, separately drive motor

vehicles, violate road traffic safety provisions, and drive

speedily to pursue [other vehicles] on a road.

Essentially the same, but in the section where

the court states what it opines (i.e., where the

court explains the reasoning for its decision),

only the phrase “according to the legal

provisions” is used, without any reference to

Article 133A. In the legal basis section, the

court states its holding is “according to” a

few legal provisions, including “Article

133A of the Criminal Law of the People’s

Republic of China”, without any discussion

of Article 133A.

2

In this case, looking at the subjective mental attitude [of

the defendants] toward driving, the two defendants,

ZHANG and JIN, after [being arrested for] questioning,

confessed in turn that “in [their] hearts [they] wanted to

find a little pleasure and thrill” and that they “gained

psychological satisfaction from weaving [in and out of

traffic] and overtaking [other vehicles] on the road”.

When faced with a red light, [they] “were

uncomfortable braking and passed every car” and

“changed lanes, zigzagged, and then overtook any car

ahead”. The aforementioned confessions of the two

defendants [together with] related audio-visual

materials were mutually confirming and could reflect

[the defendants’] competitive psychology [and desire

to] pursue thrill and show off their driving skills.

Looking at the two defendants’ objective acts, their

[acts]including driving modified motorcycles with

excessively high-power and, in pursuit of [the thrill of]

speed, changing lanes multiple times at will, running

red lights, exceeding speed [limits] by a large

marginseriously violated the rules. Looking at [their]

driving route, the two defendants departed together

from 99 Leyuan Road, Pudong New District, met at the

intersection of Lujiabang Road and South Henan Road,

and agreed on the start and end points of [their]

competitive driving. In conclusion, [it] could be

determined that the acts of the two defendants


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Guiding Case No. 32


constituted “chase-and-compete driving” [as required]

for the crime of dangerous driving.

3

On [the issue of] whether the acts of the defendants

should be considered “execrable circumstances,” [the

court] should, based on [various] factors [including] the

specific implementation of their chase-and-compete

driving, the degree of harm [caused or threatened], the

harmful consequences caused, comprehensively analyze

whether the degree of threat [that they posed] to road

traffic order and the safety of lives and property of an

unspecified number of people was “execrable”

Essentially the same, but without any

phrasing grouping the factors to be

considered into three categories. In contrast

to the GC’s “should, based on [various]

factors [including] the specific

implementation of their chase-and-compete

driving, the degree of harm [caused or

threatened], the harmful consequences

caused”, the judgment only lists a few

loosely connected factors for consideration.

4

In this case, although the acts of the two defendants’

chase-and-compete driving did not cause casualties or

property damage, [the acts] were “execrable

circumstances” [as required] for the crime of dangerous

driving based on the following analysis: First, looking

at the vehicles being driven, the two defendants were

driving high-powered modified motorcycles without a

license plate and with a counterfeit plate[, respectively].

Second, looking at [the defendants’] driving speed, their

overall driving speed was very high and exceeded speed

limits by more than 50% at many sections of the road.

Third, looking at the manner of driving, [the two

defendants] repeatedly merged lanes, wove in and out

of the cars in front [of them], and ran multiple red

lights. Fourth, looking at [the two defendants’]

attitudes toward law enforcement, the two defendants

fled when [encountering] the police inspection. Fifth,

looking at the driving route, the [roads] traversed [by

the two defendants], [including] Gaoyang Road,

Zhangyang Road, the Nanpu Bridge, and the Fuxing

East Road Tunnel, were all main roads of the city.

Along this route were multiple schools, bus and subway

stations, residential areas, large-scale supermarkets, etc.

Traffic volume was relatively high. The driving

distance was relatively long. With the thrill of high-

speed driving and their anxiety about evading the police

inspection, [they] extremely easily [could have] caused

severe and execrable traffic accidents. The

aforementioned acts caused certain danger to public

traffic safety, and were sufficient to endanger other

people’s lives and property. Therefore, [it] could be

determined that the two defendants’ acts of chase-and-

compete driving were “execrable circumstances” [as

required] for the crime of dangerous driving.


5

Defendant ZHANG, after [being arrested for]

questioning, truthfully confessed to the crime that [he]

had committed and [therefore his] punishment could be

reduced in accordance with law. Defendant JIN

Essentially the same, but the phrase “their

acts did not actually cause harmful

consequences” is used in contrast to the GC’s

more specific expression: “their acts did not

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Guiding Case No. 32


voluntarily surrendered and [therefore his] punishment

could also be reduced in accordance with law. Given

that the two defendants both recognized at trial the

illegality and social harm of [their] acts, promised to not

carry out the acts of dangerous driving again, and

expressed multiple times [their] acknowledgement of

guilt and repentance, [together with the fact] that their

acts did not cause any personal injury or property

damage, [the court] accordingly rendered the above

judgment in accordance with law.

cause any personal injury or property

damage”. (emphasis added)

Overall, there are quite a few differences between the “Reasons for the Adjudication”

section of GC32 and the original first-instance judgment. The analysis of these differences

touches on the reasons for selecting the case as a GC, which are discussed below.

III. Reasons for Selecting Guiding Case No. 32

Article 133A was added in the eighth amendment of Criminal Law of the People’s

Republic of China. Article 133A provides:5

Where [a person] drives a motor vehicle on a road to chase-and-compete

under execrable circumstances or drives a motor vehicle on a road while

being drunk, he shall be sentenced to detention and a fine.

Where [a person engages in] acts mentioned in the preceding paragraph and, at

the same time, [those acts] constitute the commission of other crimes, he shall

be convicted and punished in accordance with the provisions of the crime that

imposes the heavier penalty. (emphasis added)

This amendment identifies certain acts of chase-and-compete driving as a crime for

the first time, but does not provide clear definitions for “chase-and-compete driving” and

“execrable circumstances”. This resulted in a situation where the crime of “chase-and-

compete driving” could not be effectively combated; despite the underlying actions being

quite common, convicted cases were few, as courts did not have the tools to effectively

5 《中华人民共和国刑法修正案（八）》 (Amendment (VIII) to the Criminal Law of the People's

Republic of China), passed and issued on Feb. 25, 2011, effective as of May 1, 2011,

http://www.npc.gov.cn/npc/xinwen/2011-02/25/content_1625679.htm.

While changes were made to Article 133A when the Criminal Law of the People's Republic of China

was amended for the ninth time, these changes did not affect the portion of the Article that relates to “chase-and-

compete driving”. 《中华人民共和国刑法修正案（九）》(Amendment (IX) to the Criminal Law of the

People's Republic of China), passed and issued on Aug. 29, 2015, effective as of Nov. 1, 2015,

http://news.xinhuanet.com/legal/2015-08/30/c_1116414724.htm。《中华人民共和国刑法》(Criminal Law of

the People’s Republic of China), passed on July 1, 1979, issued on July 6, 1979, effective as of Jan. 1, 1980,

amended nine times, most recently on Aug. 29, 2015, effective as of Nov. 1, 2015,

http://pkulaw.cn/bzk/LawDetails.aspx?lawid=256346.

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identify the crime.6 The SPC responded by releasing GC 32. The Main Points of the

Adjudication of GC32 read:

1. Where a motor vehicle driver, out of competitiveness, pursuit of thrill,

vindictiveness, or other motives, zigzags and drives speedily to pursue

[other vehicles] on a road, [such driving] is “chase-and-compete driving”,

as set forth in Article 133A of the Criminal Law of the People’s Republic

of China.

2. Where chase-and-compete driving does not cause casualties or property

damage, but [is found to] sufficiently endanger other people’s lives and

property [based on] a comprehensive consideration of severe violations of

the Road Traffic Safety Law, [including] speeding, running red lights,

aggressive overtaking, and resisting traffic law enforcement, the

circumstances are “execrable circumstances” [as required] for the crime of

dangerous driving.

In other words, a determination of “chase-and-compete driving” requires a comprehensive

consideration of “the perpetrator’s subjective state and objective acts” so as to achieve the

principle of “unity of subjective and objective [factors]”.7 Regarding a determination of

“execrable circumstances”, the Office for the Work on Case Guidance of the SPC explains:

The crime of dangerous driving is a new crime added to the “crime of

endangering public safety” stated in Chapter Two of the Criminal Law. The

object of harm is mainly road traffic order, and, at the same time, [the crime]

also threatens the safety of lives and property of an unspecified number of

people. The “execrable circumstances” element of the crime chase-and-

compete-type dangerous driving is critical to a determination that an act of

chase-and-compete driving amounts to a crime. In general, the determination

requires one to combine various factors, including the specific implementation

of the chase-and-compete driving, as well as the degree and consequences of

the harm caused, to analyze whether the degree of threat that the act posed to

road traffic order and the safety of lives and property of an unspecified

number of people was “execrable”.8

GC32 clarifies the standards to be used in making a determination of “chase-and-

compete driving” and “execrable circumstances” as set forth in Article 133A of the Criminal

Law. This helps control and prevent such actions and promote public traffic order and safety.

6 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme

People’s Court), supra note 3, at 4. See 杨维宇 (YANG Weiyu), 浅析危险驾驶罪的犯罪构成及认定 (An

Analysis of the Constitution and the Determination of the Crime of Dangerous Driving), 《四川省高级人民法

院审判实务研究》(TRIAL RESEARCH OF THE HIGHER PEOPLE’S COURT IN SICHUAN PROVINCE, Sept. 30, 2013,

http://www.sccourt.gov.cn/trial_practice/201111/5446.html. 7 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme

People’s Court), supra note 3, at 5. 8 Id.

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It is for this reason that GC32 was selected.9

IV. Brief Comments

With respect to the similarities and differences between GC32 and the original first-

instance judgment and to the reasons for selecting the case as a GC, the authors have the

following observations.

1. The Scope of the “Main Points of the Adjudication” Section of GC32 is Broader

than the Facts of the Underlying Case

The “Main Points of the Adjudication” section of all GCs is added by the SPC when it

prepares a selected judgment as a GC. Article 9 of the Detailed Implementing Rules on the

“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”10

provides:

Where a case being adjudicated is, in terms of the basic facts and application

of law, similar to a Guiding Case released by the Supreme People’s Court, the

[deciding] people’s court at any level should refer to the “Main Points of the

Adjudication” of that relevant Guiding Case to render its ruling or judgment.

It is thus clear that the “Main Points of the Adjudication” are important. Their scope should

closely follow the material facts of the GC.

GC32 provides a good example to show which facts are not material facts and thus

need not be included in the “Main Points of the Adjudication”. In this case, the two

perpetrators drove in the same direction and agreed upon a common destination. The first

paragraph of the Main Points of the Adjudication of GC32 provides: “Where a motor vehicle

driver, out of competitiveness, pursuit of thrill, vindictiveness, or other motives, zigzags and

drives speedily to pursue [other vehicles] on a road, [such driving] is “chase-and-compete

driving”, as set forth in Article 133A of the Criminal Law of the People’s Republic of China.”

The paragraph does not mention the number of motor vehicle drivers or whether a destination

was agreed upon. According to the Office for the Work on Case Guidance of the SPC, the

lack of reference to such information is due to the fact that, in practice, those who drive a

motor vehicle on a road to chase-and-compete may not exhibit the same fact pattern. The

Office writes:11

Regardless of the number of motor vehicle drivers, whether the starting and

ending points of driving were agreed upon, or whether [the vehicles were]

9 See id. at 4. 10

《〈最高人民法院关于案例指导工作的规定〉实施细则》(Detailed Implementing Rules on the

“Provisions of the Supreme People’s Court Concerning Work on Case Guidance”), passed by the Adjudication

Committee of the Supreme People’s Court on Apr. 27, 2015, issued on and effective as of May 13, 2015,

STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Cases Rules, June 12, 2015 Edition,

http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english/. 11

See 最高人民法院案例指导工作办公室 (The Office for the Work on Case Guidance of the Supreme

People’s Court), supra note 3, at 5.

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driving in the same direction or opposite directions, [a driver’s act] can be

determined as chase-and-compete driving as long as he drives a motor vehicle

in such a way that he zigzags and drives speedily to pursue [other vehicles] on

a road.

In the authors’ opinion, the number of motor vehicle drivers, whether these drivers were

driving in the same direction, and whether a common driving destination was agreed upon are

not the material facts of this case. Therefore, the “Main Points of the Adjudication” does not

need to have any reference to these details.

2. The Definition of “Chase-and-Compete Driving” in GC32 is Unclear

The “Reasons for the Adjudication” section of GC32 provides:

“Chase-and-compete driving” under the Criminal Law generally refers to acts

where the perpetrators, [at least] two people, out of competitiveness, pursuit of

thrill, vindictiveness, or other motives, separately drive motor vehicles, violate

road traffic safety provisions, and drive speedily to pursue [other vehicles] on

a road.

However, the “Main Points of the Adjudication” section in GC32 describes “chase-and-

compete driving” as “a motor vehicle driver, out of competitiveness, pursuit of thrill,

vindictiveness, or other motives, zigzags and drives speedily to pursue [other vehicles] on a

road”. It does not mention the “violat[ion of] road traffic safety provisions”. In subsequent

cases, if a motor vehicle driver “out of competitiveness, pursuit of thrill, vindictiveness, or

other motives, zigzags and drives speedily to pursue [other vehicles] on a road”, but does not

“violate road traffic safety provisions”, would this still be chase-and-compete driving under

the crime of dangerous driving? That the GC does not clarify whether violation of a road

traffic safety provision is necessary for a determination of chase-and-compete driving will

pose problems for courts in subsequent judicial adjudication.

Documents

Guiding Cases in Perspective TM 指导性案例 透视...GC32 quite clearly provides the adjudication reasons of the Shanghai Pudong New Area People’s Court, but there are still

Guiding Cases in Perspective TM 指导性案例透视...GC32 quite clearly provides the adjudication reasons of the Shanghai Pudong New Area People’s Court, but there are still