Analysis On Judicial Consistency According To Similarity Of Cases

It is an approaching process to justice, demanding all the way through legislature to implementation of law. This paper is established on empirical analysis on judicial consistency in comparable cases. Under constitutional context, it is a key to interpret the realistic situation for ideal legislative institution; this understanding would be essential to reveal those which affect the process of law implementation.In the first chapter, it is started from the definition of judicial consistency according to similarity of cases; then by locating its functional role in establishing constitutional order, the ideal situation would be revealed. It is found that the realization of consistency the access to constitutionalization, which based on the realization of human dignity, democracy and the rule of law during this process. So it is required all through the process of legislation and law application:from constitution-making to establishment of legal institutions, and finally transformed into living mechanism by individual case.The second chapter puts the topic under the context as basic rights. It is firstly required by equal right that judicial behold some rational consistency through cases. On this premise, it is the key value underneath the judicial consistency of cases. Meanwhile, only on the premise of existence could any individual pursue one’s rights to liberty and development, it is judicial consistency that sustain every individual’s equal existence as legal subject; so in some way, the extent to realization of judicial consistency has its determinative role in the realization of those basic rights.To figure out the relation between constitutional institution and authority of Communist Party of China would be the main issue in the third chapter, which settled the framework of its operating mechanism in contemporary era. It is the authority of Communist Party of China lead the people of China to establish existing constitutional institution, while after that, the authority would be functioning under the context of constitutionlization. However, conflicts between the two would be inevitable; and it is essential to understand the changes of policies for judicial operation. It must be clarified that the policies may have authority in application rules of law, while not in recognization for legal facts. It could be understood as that the Party has its power to authentic interpretation under the supremacy of constitution.It is the legal sources that would be discussed in ChapterⅣ. As a cohesive system of laws, it is the value and basic principles of constitution that intergrating the institution. The key to maintain the rational consistency in judicial operation is to stick to the part of precedents’ gist, which sustains the legal conclusions’ conformity to constitution.Chapter V is trying to clarify the process from legal interpretation to the establishment of judicial consistency. Intersubjectivity characterizes the process of legal interpretation, which necessarily leads to variety. However, every interpretation leads to the same destination:justice. So when it comes to controversial interpretations, constitutionality as supreme standard would at least intergrate all basic values.Chapter VI reflects the opposite practice to judicial consistency. Although it has comprehensive realistic motives to violate the consistency, while its controversial to constitutional values made the opposition practice an abnormality to constitutionalization.At last chapter, the paper settled a primeval design for implementation, which is based on interpretation on guideline for precedential cases’ application, issued by Supreme Court. This official document has pointed out that it is the gist that the core to precedents’ application, which is not only a link between legal sources, but also one key mechanism to reform existing court system which has been distorted by administrative replies for cases.