Research On The Guiding Case System Of The Supreme People's Court

Case is the crystallization of the legal concept, theory and provision applying in the practice, so all countries in the world attach importance to case. As far as our country is concerned, although case does not have the status of source of law, a typical case has reference value or binding force in the trial practice is an indisputable fact. Our country has a long history and rich practice basis for the application of case, but the case guidance mostly has been running only in the judicial system. With the social transformation and the formation of the socialist legal system with Chinese characteristics, the case guidance has gradually walked from behind the stage. The promulgation of "Regulation about Cases Guiding "marked the beginning of the standardized construction, and the guiding cases issued one after another also energized the system. However, there is always a gap between the ideal and the reality. Due to illogic of the system itself and it is not compatible with the overall judicial environment, the system construction has been destined to be a bumpy ride at the beginning of its birth. This is not only reflected in the related normative documents, but also founded in the data of the research or embodied in all specific guiding cases. What kind of guiding cases are really needed? To answer this question, we should study the guiding cases systematically.This article is divided into seven parts, including foreword and conclusion.Foreword:In addition to introducing the significance, status quo and methods of the study, the most important in this part is raising the question and defining the object through the assessment of the first batch of guiding cases.Chapter I:the basic investigation of the guiding cases. This chapter introduces the concept, classification, legitimacy,function and issuance of the guiding cases. First of all, the "guiding case" is defined from the perspective of comparative study and analysis of the structure of words, distinguishing it from the case, the case law and the precedent, clarifying its relationship with the case guidance system and judicial interpretation. Secondly, a detailed classification is carried out for 52 issued guiding cases according to different standards.Then, the legitimacy of the guiding cases is explained from the legality and rationality,and on the basis of the analysis, its function is also located. Finally, the structure, narrative and general situation of the guiding cases are evaluated briefly.Chapter II:the review of background of the guiding case system's generation. Because the generation and application of the guiding cases are carried out within the framework of case guidance system, we should investigate the background of generation of the entire case guidance system from a macro perspective to look for the answer how guiding cases come into being. Therefore, this chapter discusses from three aspects:the space dimension, the historical perspective and the objective practice of the judicial reform. In terms of the space dimension, it is inevitable for the integration of the two legal systems, and establishing case system is the inherent requirement of the law construction, what's more, statute law and judicial precedent can keep complementary and coordinated development in any legal system. From the perspective of history, China has a rich tradition of great importance to the case. Especially since the foundation of China, the case guidance has experienced a gradual development from spontaneous to conscious through a long-term exploration and continuous summary of the people's court. On the practice of judicial reform, it becomes more prominent what social transformation expects for the justice after the socialist legal system with Chinese characteristics has formed. In a sense, the establishment of the case guidance system is a rational response to the social transformation.Chapter III:the normative interpretation of the guiding case system. This chapter deeply interprets the normative contents of the guiding case system, which is based on the "Regulation about Cases Guiding" and "Rules for the Implementation".On the issuing subject, there are both advantages and disadvantages for the issuing right monopolized by the supreme people's court, but it is absolutely necessary in the initial stage of establishing the system. On the selection criteria, the existing criteria overlaps, expresses vaguely, lacks of logic and science. On the selection procedure, the present mode separates the connection between the case and the trial proceedings, so it can't demonstrate the validity of the guiding cases. In addition, the social recommending way to show "democracy" is a mere formality due to the lack of the necessary technical supporting. On the validity, the two normative documents don't speak in details either, therefore, how to understand "should refer to" is still in suspense. Moreover, in terms of the system construction, the guiding cases may also be faced with other problems, such as the termination process is not perfect, the supervision mechanism is missing and so on.Chapter IV:the empirical analysis of the guiding case system. In order to understand the applying condition of the guiding cases. The author investigated some judges and lawyers in Zhejiang, Hubei, Tianjin, Guangdong, and Jilin province from December 2014 to February 2015 by questionnaire survey. And the questionnaire involves the theoretical understanding, selection procedures, specific application and other aspects. On the results of the survey, the vast majority take a positive attitude to the guiding cases, but at the same time, the effect of the guiding cases is not satisfactory, which is shown in the following aspects:the applying condition is not optimistic, the social identity needs to be promoted, and the formation and guiding mechanism also need to be improved. Analyzing the reason, it mainly lies in: administrative model of propulsion has neglected the needs of practice, ambiguity of the validity has hindered the applying, thinking patterns of statute law have bounded the referring paces, lack of supporting mechanism has restricted the applying effect, and propaganda was not enough has influenced the social acceptance. In a word, there are both objective factors and subjective reasons, which are needed to be perfected in the continuing exploration.Chapter V:the perfection of the guiding case system. If the guiding cases want to develop sustainably, the construction thinking of the system itself should be adjusted:in the aspect of generation, in addition to resetting the selection criteria, strengthening pre cultivation, perfecting the social recommending mode, fixing the issuing cycle, the most fundamental is promoting the guiding cases to generate from the administrative selection to the proceedings. That is to say, in the system of the third trial being the final and the legal trial, the guiding cases should come from the cases which are heard by the supreme people's court or the higher people's court. In case of application, in addition to establishing convenient searching system, more important is accurately determining the validity of the guiding cases ----"persuasive power with certain system supporting", and ensuring the realization of the validity through procedure and technical guidance for "should refer to". In other respects, perfecting the termination procedure, and adding the supervision and coordination mechanism are also imperative. Furthermore, for good operation, the relevant supporting measures are indispensable:strengthening the reasoning of the judgment, improving the judge's professional quality, promoting the legal professional consensus and reforming mode of law education. Only by standing on top of the judicial reform and operating from a strategically position, does the guiding cases get long-term development.Conclusion:To sum up the full text and look forward to the future of the guiding case system.