Guiding Case Study From The Perspective Of The Source Of Law Theory

As an important innovation in the judicial field of contemporary China,the case guidance system of the Supreme People's court has received long-term continuous attention from all walks of life since its establishment,and has been placed high hopes by the theoretical and practical circles.However,from the situation in recent years,the case guidance practice mainly faces three difficulties.The first aspect of the problem is the "cognitive problem".Because of the cognitive deviation of the effectiveness and function of the guiding case,people often have doubts about "why to apply the guiding case" in judicial practice.The second aspect of the problem is "technical problems",because people can not clear the reference conditions and specific application methods of guiding cases from the level of referee methods,and then feel confused about "how to apply guiding cases".The third problem is the "institutional problem".The existing case guidance system has been unable to fully meet the needs of judicial practice.The reform and transformation of the system need to face the interrogation of "where the guiding cases go".The above three practical problems and the superimposed effect of their interaction lead to the limited practical effect of guiding cases in judicial practice,and even face the major crisis of "exist in name but exist in reality".The theory of source of law can be divided into legislation and judicature.Since the production and operation of guiding cases are in the judicial field,understanding the source of law from the perspective of justice can better serve the study of guiding cases.From the definition of the concept,the source of law in the judicial sense is the source of the reason or basis of judgment.From the perspective of the mechanism of the concept,the source of law is the product of applying multiple norms "in the name of law" through "imitation".From the logical relationship between different theories,the theory of source of law is closely related to legal methodology and judicial system theory.They can form a "theoretical group" together and be used to analyze the problems existing in the understanding,application and improvement of a certain type of source of law norms.Specific to the research object of this paper,the source of law theory is helpful to provide a proper perspective for the systematic analysis of various problems in case guidance practice,and generate targeted solutions based on this.The answer to the epistemological problem of guiding cases needs to be expanded from the two dimensions of source of law effectiveness and function.The effectiveness of source of law mainly comes from the authority behind it.Different types of authority will produce different binding force.The effectiveness of source of law is not equal to the actual effect of source of law.American scholar Bodenheimer's dichotomy of source of laws into formal sources and informal sources can not fully meet the needs of contemporary Chinese judicial practice,and it is easy to produce paradoxes when defining the effectiveness of guiding cases.Therefore,it is necessary to introduce the theory of "tripartite law" of Swedish scholar Peczenik to define the effectiveness of guiding cases from the perspective of judicial argumentation.The guiding case has both normative and factual binding force produced by institutional authority and noninstitutional authority,and its effectiveness is weaker than that of statute law and judicial interpretation.At the same time,the "should refer to" effect of the guiding case means that it will produce binding force only when it meets specific conditions.Clarifying the effectiveness of guiding cases not only helps to determine its position in the contemporary Chinese source of law system,but also helps to clarify the relevant judicial obligations in theory.In terms of the function of source of law,guiding cases have rich legal methods such as legal discovery,legal interpretation,loopholes filling and legal argumentation.In the aspect of law discovery,the guiding cases find the judgment rules from statute law,judicial interpretation,public policy,civil custom and other types of source of laws.In the aspect of legal interpretation,guiding cases use the interpretation methods of literal interpretation,system interpretation,purpose interpretation,historical interpretation and comparative interpretation to interpret and supplement the existing legal rules.Guiding cases can also fill the loopholes in the legal system through analogy,reverse reasoning,purposeful expansion and purposive restriction,and concretization of legal principles or legal principles.The legal argumentation of guiding cases can be examined from the argumentation based on the facts of the case,the argumentation based on formal logic and informal logic,and the argumentation based on the balance of consequences.In a word,the reason why people should refer to the guiding cases is not only because it has the normative binding force and the judicial obligations,but also because it has the important function of guiding the judgment method.In view of the technical problems of guiding cases,it is necessary to study the applicable conditions and methods of it from the perspective of source of law theory and legal method theory.Since the basic concept of guiding cases is "the same case and the same sentence",the premise of its reference application is that "there is similarity between guiding cases and pending cases".According to the current provisions,this similarity is mainly reflected in the "basic case" and "Application of law".However,it is difficult to distinguish the two in theory and practice,so it is necessary to determine a specific object of comparison and reconstruct the two in methodology.By referring to foreign experience and combining with the specific situation in China's theory and practice,"essential facts" is more suitable as the comparative object of case similarity judgment.The induction and comparison of the elements of guiding cases and pending cases need to be realized by analogy.In this regard,the theories of Sunstein,Alexey,Brewer and others have certain enlightening significance.In addition,considering the complexity of judicial practice and litigation procedure,after the completion of the preliminary comparison of the similarity of cases,it is necessary to make correction judgment based on the voidability test and consequence balance.In the application of guiding cases as the source of law,it is necessary to distinguish between the general situation and the special case.In general,after completing the case similarity judgment,it is necessary to identify and quote the judgment rules from the guiding cases,and at the same time,it is necessary to ensure the consistent application of the guiding cases and other judicial reasons.In special cases,in order to fill the legal loopholes or achieve other legitimate normative purposes,it can be applied by reference across different types of cases to a certain extent.If the applicable conditions of guiding cases and pending cases are not tenable or have lost their guiding role,the reference application of guiding cases should be denied and reasoned.In addition,due to the difference of source of laws among different legal departments,such as civil,criminal and administrative departments,different types of guiding cases also have certain characteristics in terms of reference application.As for the institutional problems of guiding cases,we need to use the theory of source of law and judicial system to study.The formation and evolution of various case systems are inseparable from the joint action of "power" and "market".The power factor establishes the authority of precedent as the source of law;the market factor cultivates the consensus of precedent as the source of law;the former provides the latter with institutional guarantee,and the latter provides the social basis for the former to operate.The two need to be combined to promote the sound development of the precedent system.The improvement scheme of case guidance system in China can be divided into three stages:short-term,medium-term and long-term.In the short term,we can quickly establish the authority of guiding cases by means of power:giving the guiding cases a clear judicial status,reforming the reasoning mode of judicial documents,improving the retrieval system of similar cases and the mechanism of resolving differences in the application of law.In the medium term,we need to pay attention to the role of judicial market factors,cultivate the consensus of guiding cases as the source of law:to enhance the supply capacity and friendly degree of the guiding cases,to improve the efficiency of the application of incentive mechanism and intelligent justice,and to establish a case evaluation and elimination mechanism involving multiple subjects.In the long run,it is necessary to abandon the prejudice against the case system and promote the transformation of the case guidance system to the case system with substantive Chinese characteristics.This requires clarifying the source of law status of the case,coordinating the relationship between authority and consensus in the case system construction,strengthening the interaction between case compilation and legal commentary,and continuing to develop mature case application theory and technology.To sum up,this paper makes a systematic analysis of China's case guidance practice in recent years by using the source of law theory and its "theory group" in the judicial sense.Through the research approach of "how to understand the guiding case-how to use the guiding case-how to improve the guiding case",the paper focuses on "why to apply the guiding case","how to apply the guiding case" and"how to apply the guiding case" "The guiding cases provide solutions to such problems as "where to go".In addition,the process of text research is not only an attempt to analyze and solve the problem of guiding case practice by using the theory of source of law,but also an attempt to reflect and perfect the contemporary Chinese source of law theory with the problem of case guiding practice as chance.