Research On Construction Of China's Case Guiding System In Law And Economics Perspective

Introducing the CGS with striking characteristic of the common law into China's judicial system is undoubtedly an important reform or institutional change, which arouses intense debates in legal theory fields.The power of institutional demand drives the policy makers to make the change prudently and determinently with leaving the restless argumengts aside. But the lack of theories preparation results in the system construction goes not well.This paper seeks to do some deep research on this great institutional change. Firstly, the paper examines the evolving history of cases guiding the judicial practice and reveal its feature to find the historical and realistic basis. Secondly, through the study of the target value and its realizing mechanism, the paper makes preparation for the plan of constructing the system. Then the paper focuses on the way in designing scientifically and resonably the key mechnism system of the CGS to advance to achieve the goal of judicial justice and effeciency, which based on the experiences and some lessons from the current situation of cases guiding the judicial practice. The paper makes some explorations of the CGS theoretically and practically and does some innovative work. The main body of the paper includes the following sections:1. The paper defines the core concept of the CGS——guiding case by comparing it with the concepts "case" and "precedent". On this basis of that, the paper interprets the CGS's content, nature, basic characteristics, etc.and paves the way for further study.2. From the perspective of institutional change, the paper examines the evolving history of guiding the judicial practice by the cases in the traditional context, and illustrates by the adequate and accurate facts of the law development history that building the CGS in China is not like a river without a souce but has a long historical tradition, the analysis gives some enlightenment for the CGS's building and cosummating.3.The analysis of guiding the judicial practice by the cases in the contemporary context in the view of institutional change defines the starting point and the subject of the construction of the CGS. Meanwhile, it reveals the path of CGS's institutional change, that is, from the induced institutional change changes into the imposed institutional change, and finally the imposed institutional change takes the domination.4. The paper makes the economic analysis of the CGS's value and the ways to its realization. The paper firstly expounds the value of building the CGS, that is, justice and efficiency. Then it makes full use of basic economic analysis in law and economics, such as transaction cost theory, game theory, incentive theory, and others, to analyze in-depth the following ways to realize the value:to facilitate the justice information sharing and make the judicial information shift from the asymmetry to the symmetry, thereby enhancing the judicial certainty and the uniformity of law applying, to constrain the exercise of judicial power so as to curb judicial corruption, to promote the reconciliation between the litigants and save the social costs, to make use of the external economic effects of the guiding cases and improve judicial efficiency. At the same time, it reveals the mechanism of achieving the institutional value, which provides an economical basis for designing the CGS in the next chapter.5.The paper proposes the CGS' construction program. Based on the experiences and some lessons from the current situation of the practice of guiding the judicial behaviors by the cases, the paper summarizes the restrictive factors and points out the way to consummate the CGS' construction. To eliminate the restrictive factors and ensure the achievement of the institutional value, the paper constructs the key structure of CGS, which includes the guiding cases' producing mechnism, the judicial information transmitting mechanism and the binding and supervising mechanism. On the basis of the positive absorption of useful experience from the typical countries in two legal systems and taking China's situation into account it also correspondingly makes a number of specific countermeasures to the implementation of CGS' construction program.