The Study Of Criminal Case Guidance System

Case is the rule of law.It is the effective combination of social practice and legal norms,and the practical application of the actual legal norms.Whether it is within or out of the region,or in the countries of Anglo-American law or the continental law,the precedents are playing an extremely important role.In China,as a valuable wealth of justice,taking the advantage of cases to promote the construction of legal system is indispensable.Cases guiding system has been carried out for more than 6 years in our country.However,subject to a number of reasons,the executive effect is far from the expectations.Academic field have a lot of differences on the theory of case guiding system,and there is still no consensus on the litigation validity of the guiding cases.Based on the grim reality of the unclear theory of this system and the unfavorable practice operation,further study on case guiding system has become the top priority.In the perspective of the field of criminal case guidance,clarifying the differences of the case guidance system in theory and the special requirements of the criminal case guiding system,eliminating the obstacles to the system operation,and promoting exertion on the complementary function of the criminal case guiding system,achieving the goal to unify the law application and maintaining the judicial justice,are the target and value of this subject.The case guiding administration of justice activity has a profound historical foundation in our country,and the establishment of the criminal case guiding system is not a whim from the judicial organs,but is gradually established by judicial officers' many years of hard work to explore the practice of cases guiding work.Therefore,the establishment of the criminal case guiding system is the accumulation and sublimation of many years' case work,and a continuation of the judicial tradition in Chinese judicial practice and it is not just a simple copy of the foreign judicial precedent system.After the establishment of the case guiding system,the status of guiding case has also changed.It is different from the previous cases and the recent non-directive cases,but the cases,affirmed by Rules of Case Guidance from The Supreme People's Court,should be followed when courts from different levels trail the similar cases.When tease out the criminal guiding cases which have been published by the Supreme People's Court,it can be found that the problem is not clear,the cases used to explain the laws are insufficient,and many cases reiterate judicial explanation and respond tothe social public concerns,so it cannot efficiently solve the law application problems.Whether the practice of criminal case guidance system violates the principal of legality is a necessary question to be demonstrated.The principal of legality requires the explicit law to be the bottomline and the judge cannot execute beyond law to trample on citizens' legal rights at will.Different from the civil case guiding system,the criminal case guiding system with Chinese characteristics must adhere to the principal of legality,which is essentially a legal application mechanism,rather than a making law mechanism.Criminal guiding cases are activities of explaining laws under the following of framework of the existing statute and the judicial interpretation,providing judgment standard for the similar cases and unifying justice mode,so there is no suspect that the judges make laws at his will.Criminal guiding cases not only do not violate the principal of legality,but also coincide with the principal of legality,playing an important role in clarifying the legal connotation and restricting the discretion of judges,which is in favor of the realization of the principal of legality.The essence of the principal of legality lies in the effective combination of statute and judicial cases.As a measure for the judicial reform,criminal case guiding system focuses on the law application.It emphasizes the guideness for adjudication activities,aiming at the unification of law application.Guiding case itself has no legal force.It is the epitome of the applicable statute,which is important in guiding the trial for similar cases.As a way of legal interpretation,the criminal case guiding system is an auxiliary means for the realization of legislation,and legislation and guiding cases are in the relation between "advocate" and "auxiliary".Criminal case guiding system is different from judicial interpretation.It is the beneficial supplement for judicial interpretation,together,and they both constitute the unique legal interpretation system in our country.The reasonable allocation of the interpretation space of the two aspects is the focus for the future consideration.Criminal case guiding system has many complementary functions towards statute,and its in feasibility,intuition and concreteness can effectively make up the deficiency in legislative interpretation and judicial interpretation,and can also direct judicial referee,guide sentencing,animate and develop legislation,lead,predict and also respond to the social public concerns.From the empirical analysis of the congnition of criminal case guiding system and the quotation of criminal guiding cases,it can be found that judicial officers have low familiarity with the criminal case guiding system,and the effectiveness of guiding cases suffers from the cold reception from the judicial personnel.Judicial officers' concept lags behind and lacks techniques in applicable guiding cases.The quotationrate of guiding cases is extremely low,and the court does not respond to other litigants' quotation of guiding cases.The court quotes the guiding cases in various forms,so it lacks standarization.The data and conclusions of the empirical analysis demonstrate that the practice of the criminal case guiding system is not very good,and it is far from exerting the advantageous function of guiding cases.There are some reasons.First,the should-be reference effect of guiding cases perform practically no function.Second,the small number of guiding cases can hardly cover the law difficulties of criminal judicial practice.Third,the leadership of the guiding case that has been published has a weak persuasion.The ways to refer to the advanced experience from the extraterritorial judicial precedent system can be completed by the inside and outside paths of criminal cases guiding system.The first is to focus on the influence of the internal system of criminal case guiding system,to promote the higher people's court as the main body of guiding cases,to strengthen the guiding force and persuasion of the criminal guiding cases,and to improve the mechanism of the criminal case guiding system.The second is to ensure the independent status of the judiciary from the exterior environment,control the quantity of judicial interpretation,strengthen the training of judges' ability in application cases,and strengthen the positive interaction between scholars and criminal case guiding system.By the ways mentioned above,barriers for the operation of criminal case guiding system can be eliminated,and the dominant function of the guiding cases can be exerted surely.The criminal case guidance system is a prototype of the case law system,which is still in its infancy,and its development is a long-term social project,which cannot be achieved overnight.Therefore,we should be patient enough and make efforts to make the criminal case guidance system effective and have vitality in the future.