On Guide Administrative Case

Along with two big legal systems'unceasing fusions in the world, the precedent becomes more and more important in the civil legal system country. In China, although the precedent has not been acknowledged as the sources of law officially, there are the similar reforms and practical activities already. On October 26,2005, the Supreme People's Court issued "the People's Court Second Five Year Reform Outline (2004-2008)". In The 13th item, it was pointed out explicitly that: to establish and perfect the case-guiding system, great attention should be paid to make the guide case play an important role in unifying the applied standard of law, guiding the trial procedure of Subordinate Courts, enriching the legal theory and so on. From its orientation, it is concluded that the guide case was pointed out relevantly to the precedent officially. Moreover before then, there exists the practice of guide case already.In the domain of the administrative law, the guide administrative case is similar to the administrative precedent correspondingly. It is well known that the administrative precedent plays an important role in the developing process of administrative law in France and Germany. As Chinese native precedent, what is the concept and the scope of the guide administrative case? What's its value? How to formulate it and what is its effect? What is the basic experience with the administrative precedent in the civil legal system country? What is the historical review of it? In China, what is the role of the guide administrative case in the development of administrative law? At present what problems do there exist about the guide administrative case? What is its development trend? Obviously it is very important and significant to study these problems. But nowadays the study of these problems is not sufficient and systematic. It is the reason why the author selects the topic. The analysis and the solutions regarding these problems consist of the theme of this paper. Based on the research situation on precedent and so on, using historical, comparative, empirical and value method, the author would study the topic from its theory to its system and practice."Localization","empiric"and"branch law"is the characteristics of the paper.The paper is composed of seven chapters.The first chapter is"introduction". The research background, the research objects, the research methods and so on are discussed in this part. The social background of the study is the change trend of the research paradigm in accordance with the transfer from the legislation period to the judicial period. As result of Chinese social transformation and the closed resources of administrative law, the adaptability of the administrative statue law is decreased. And so from the view of the comparative law, the guide administrative case is worth studying."The guide administrative case"is a valued thesis.The second chapter is"the concept, scope and value of the guide administrative case". The guide administrative case is comprehensive about the entity and procedure attribute. The author believes that the guide administrative case is the typical administrative case including issues chosen by the people's court to guide the trial procedure of subordinate courts, including all the typical administrative case chosen by all the people's court. Its scope is wide. It may be classified on the basis of different standard. Its main value is to make judicial criterion clear and unified. It is different in the concept, scope and value from the administrative precedent.The third chapter is"the formulation and the effect of the guide administrative case"From the eye of stage and development, on the one hand, present formulation subject and criterion is reasonable, but with the development of rule law, it is similar to one of the precedent in the civil legal system country, on the other hand, the present guide administrative case is persuasive while some developing one is valid. The guide administrative case should be formulated publicly and normatively.The fourth chapter is"on the administrative precedent in the civil legal system". These countries comprise France, Germany, Japan and China Taiwan. In the civil legal system, the precedent is the basic form of judge's interpretation and binding to some extent. Comparing with the administrative precedent in the civil legal system, those guide administrative cases of legal interpretation or lawmaking are the administrative precedent factually, while those guide administrative cases of application of law are similar to common cases in Japan and China Taiwan, moreover, they play their different roles from the administrative precedent according to vary legal background of countries.The fifth chapter is"the historical review of the operating mechanism of it". Because there is close relationship between the guide administrative case and the case-guiding system, the theme of the chapter becomes the historical review of China's contemporary the case-guiding system. During the period of revolutionary base, there appear rudiments of the case-guiding system. During the period of Shaanxi-Gansu-Ningxia Border Area, the high court compiled"Case Reports in Shaanxi-Gansu-Ningxia Border Area". It is the Embryo of the case-guiding system. From the founding of new China to the reform and opening, the primary function of the case-guiding system turned to summary practice experience, rule the trial procedure of courts. The guide case is inclined to create the rules of law. After 1978's reform and opening, the primary function of the case-guiding system has been guiding subordinate courts to apply the statue law correctly and improve the quality of judgment. The case-guiding system was established officially and ongoing.The sixth chapter is"the empirical analysis on the role of the guide administrative case in the development of administrative law". Based on application of law, legal interpretation and lawmaking, the author takes"the People's Supreme Court Bulletin Case"as an example to prove its different role to the administrative statue law. It is concluded that the main function is to guide subordinate courts to apply the statue law correctly and unified. In addition, some cases become the administrative precedent objectively and make up for the abstractness and the hysteretic nature of the statue law.The seventh chapter is"the problems and the solutions of the guide administrative case". The chapter discusses the existing problems, reasons, present relative factors and the solutions about the guide administrative case. The author believes we should transfer from the single track of the case-guiding system to the double track of the case-guiding system and the precedent-citing system. Further, the dualistic pattern should be carried out on the case-guiding system and the unified pattern to the precedent-citing system. In addition, that the precedent should be the basic form of the Supreme People's Court's judicial interpretation stage by stage, while abstract judicial interpretation should be discarded. We found that the precedent should be dependent on statue law, binding and restrainedly supplement. Finally great attention should be paid to the formulation and the compiling of the administrative precedent and the guide administrative case.