Study On Criminal Guiding-Cases System

Criminal guiding-case system is based on the rules of criminal guiding-cases growth,application,guiding,exiting.The special purpose of the criminal guiding-case is to unify the application criterion of criminal law.The main problems of criminal guiding-case system research are what are the theoretical foundations of criminal guiding-case system,what are the nature,binding effect,selection criterion of criminal guiding-cases,how to produce and apply criminal guiding-cases,which how to guide and exit,whether the criminal guiding-cases are conflict with the legality principle,what is the relationship between criminal guiding-cases and law interpretation,what are the problems in the application of criminal guiding-cases.Such problems are very important for constructing and running criminal guiding-case system,but which are not emphasized by theoretical circles.So I will put such problems into five categories,forming five sessions including criminal guiding-case system research value,composition,running,practice.I wish this can help criminal guiding-case system research.The first session is introduction.The research value of criminal guiding-case system is to meet the criminal judicial needs of "treating similar cases similar",promote research direction from criminal legislation to criminal judicial.Theoretical circles not pay enough attention to criminal guiding-case system but the practice circles need it and the criminal guiding-case system can promote the program of the two circles.The second session is outline of criminal guiding-case system.Criminal guiding-case system is based on the rules of criminal guiding-cases growth,application,guiding,exiting.The special purpose of the criminal guiding-case is to unify the application criterion of criminal law.Criminal guiding-cases are case rules in formation of law interpretation and value supplement.The binding effects of criminal guiding-cases are not the same as law but is a factual effect,which radically stem from its reason.The third session is external relations of criminal guiding-case system.the criminal guiding-case as an application of law is proved by actual survey.The internal analysis also prove that the criminal guiding-case system not conflict with the principle of legality,in contrast,they can promote each other,which can be proved by the result of criminal cases,such as stereotype of components and appropriateness of punishment.For the purpose of guiding-case system,under the principle of legality criminal guiding-cases should play such roles as objective interpretation in the meaning of the text,value supplement in the aim of norms,rules-making under the law,adding cases not guilty or slightly,and in this way promote the growth of law.From the practice the criminal guiding-cases and the criminal judicial interpretation can supplement each other,and the two ought to be complementation.The fourth session is criminal guiding-case system running mechanisms.we should promote the reform in three ways:criterion focus on typical hard cases,procedure saving guiding-cases right,mechanism expanding ways of guiding-cases growth.Criminal guiding-case promote criminal law and lead the judicial practice by motivated expansion?supplementary in value?case rules?application rules.The application of criminal guiding-cases should utilize reasoning by analogy,and the judge should look for rules and principles through all parts of the criminal guiding-cases,the application of the rule take the form of the same conclusion and the application of the principle take the form of the same train of thought.The conflict of laws between criminal guiding-cases can be resolved with the application principle of conflict of laws and value-evaluating by the interpreter,and the source conflicts can be resolved by finality of judgment principle.The criminal guiding-cases be conflicts with criminal interpretations are not be sure to lose efficacy and the judge should ask for instructions to the highest judicial organs,who decide the application by the principle of the justice of individual case.The abandoning criminal guiding-cases lose them effects,there exists the expressly abolishment and the implied abolishment in the form.The fifth session is the case study of criminal guiding-case system.The essentials of criminal guiding-case 11 judgment interpreter the "land use right" into"public property" is abnormal.The "land use right" as an interest of property,is deferent type from property,so we should seek help from legislative elaboration adding "property interest" and "intangible property" into the object of bribery crimes.The application of death penalty with suspension but with restriction on commutation by guiding-cases 4th and 12th is unadvisable,the applicable conditions are not harsh guilty,subjective evil character and potentiality of offence.The sixth guiding-cases reflects that the supreme people's prosecutor excessively pay attention to victim element and the system of extending the limitation of prosecution be pro to shifting into prosecution without limitation,so,in the aspect of legislation the checking criterion of the system of extending the limitation of prosecution should be definite,the time limitation should be attached on the system of extending the limitation of prosecution and adding inapplicable conditions on the limitation of prosecution;in the aspect of judicial the prosecutor should be guaranteed verdict independently,criminal reconciliation should be facilitated between the offender and victim and the human rights idea should be uphold;in the aspect of assistant measures criminal victim rescue fund should be established,comforting measures to victim should be perfected and constructing the courting style of the system of the checking extending the limitation of prosecution.