Research On Criminal Guiding Case

In 2010,the Supreme People’s Court and the Supreme People’s Procuratorate respectively established a case guidance system through normative documents.Guiding cases,that is,cases issued through the case guidance system.In terms of appellation,it adopts the expression of "guiding cases",which means that "two high officials" want to guide judicial work through the form of cases.Criminal guiding cases,as a subset of the guiding cases,specifically refer to the guiding cases issued through the case guidance system,which belong to the field of criminal department law.As a mechanism of law application,the emergence of criminal guiding cases is not a process of creating legal rules,but a derivative process under the existing legal rules system.Therefore,compared with other department laws,criminal guiding cases are strictly constrained by the principle of legality,and can only play a guiding role within the limited scope of statutory law.Another big difference from other department laws is that criminal guiding cases cover the guiding cases issued by the Supreme People’s Court and the Supreme People’s Procuratorate.Due to different responsibilities,the purport of the "two high officials" in selecting the guiding cases is also different.These characteristics of criminal guiding cases determine that it is necessary to carry out targeted research on them.Compared with other guiding cases,criminal guiding cases show the characteristics of the combination of procedural content and substantive content.These characteristics of criminal guidance cases determine that it is necessary to carry out targeted research on them.The research object of this paper is criminal guiding cases,and its core proposition is how to give full play to the guiding role of criminal guiding cases.It mainly includes the following aspects: First,at the content level,it explores how to optimize the guidance function of criminal guidance cases by analyzing the content of criminal guidance cases;Second,at the technical level,the guiding effect of criminal guiding cases is strengthened by improving the applicable technology of criminal guiding cases.Thirdly,at the institutional level,the guiding role of criminal guiding cases is guaranteed by optimizing the selection and issuing mechanism of criminal guiding cases.The above three problems are not only based on the present,to discuss the improvement and perfection of the current stage of criminal guidance cases,but also focused on the future,to discuss the future development of criminal guidance cases.It is necessary to study criminal guiding cases in a typed way.Things are diverse,and the criminal guiding cases are no exception.It is impossible to highlight the key points if the criminal guiding cases are studied indiscriminately,because there are certain differences in nature,role and status of different types of criminal guiding cases,without distinguishing different types,the vague study of criminal guidance cases is not conducive to the formation of a clear understanding of criminal guidance cases,and is not conducive to the role of criminal guidance cases.From the perspective of type,criminal guiding cases can be divided into different types according to different standards.Based on the guidance function,criminal guiding cases are divided,and on this basis,systematic type research is carried out,which is mainly due to the problem consciousness and research purpose of studying criminal guiding cases.The core problem of criminal guiding case study is how to give full play to its guiding function,the different guiding functions determine the different nature and status of the criminal guiding cases.Taking the guiding functions as the classification standard is helpful to better understand the criminal guiding cases,and on this basis,to better play the role of the criminal guiding cases.According to the analysis of all published criminal guiding cases,the guiding effect of criminal guiding cases can be divided into interpretive function and declarative function.Therefore,criminal guiding cases can be divided into interpretive criminal guiding cases and declarative criminal guiding cases.The interpretive function of criminal guiding cases refers to the further clarification and concretization of legal rules as the expression form of legal interpretation,including the interpretation of both legal provisions and judicial interpretation provisions.Therefore,in the criminal field,the judicial interpretation has formed the coexistence of criminal guiding cases and judicial interpretation.How to give full play to the interpretive function of criminal guiding cases when they participate in the criminal law interpretation together?In China,the judicial interpretation includes the judicial interpretation of articles made on the initiative of the Supreme People’s Procuratorate and the Supreme People’s Procuratorate on the basis of their functions and powers,as well as the judicial interpretation of approval made in response to the instructions of the lower judicial organs.At present,under the concurrent situation of criminal guiding cases and judicial interpretation,due to the overlapping of the interpretation function of criminal guiding cases and judicial interpretation,it is still unable to divide the unique field of their respective effect.In this case,we should make corresponding adjustments according to the respective characteristics of criminal guiding cases and judicial interpretation,and limit the scope of criminal guiding cases to two situations:(1)further clarification and concretization of judicial interpretation,including further clarification and concretization of judicial interpretation of articles and judicial interpretation of reply;(2)judicial interpretation of articles with the characteristics of stability,systematicness and standardization,when the judicial interpretation of articles cannot be in place in a short period of time,we should issue criminal guiding cases as a transition,and then issue criminal guiding cases when conditions or time are ripe.Looking at the future,because the criminal guiding cases have the advantages that the article judicial interpretation does not have,looking at the future,because the criminal guiding cases have the advantages that the article judicial interpretation does not have,from the perspective of ought to be,criminal guiding cases should replace the judicial interpretation of articles and become the main form of criminal law interpretation.The criminal guiding case and the judicial interpretation of reply have similarities.They can learn from each other and integrate with each other to transform the reply system and make it a quick response mechanism of criminal guiding case.The declarative function of criminal guiding cases means that although the criminal guiding cases do not further clarify or specify the legal rules,they demonstrate the process and results of the application of the law in combination with the cases.Criminal guiding cases can clarify the original meaning of criminal law,promote the understanding of the original intention of criminal law combined with the facts of specific cases,avoid the application difficulties and deviations caused by the abstraction of criminal law,emphasize the judicial work focus of a certain type of cases or the application of criminal law,and also can give demonstration and guidance to the methods and scales of the application of criminal law.Although there is no further clear and specific interpretation of legal rules in declarative criminal guidance cases,it still has the necessity of existence.On the one hand,this necessity is determined by the level of our judicial staff and the current situation of the judicial environment,on the other hand,it is due to policy considerations.With the strengthening of the status of guiding cases in judicial practice,when the status of judicial interpretation is replaced by guiding cases,the objects of declaration of criminal guiding cases will focus on the provisions of criminal law.Although the contents may be criminal principles or criminal policies,they should ultimately be based on the standard of crime and punishment.In terms of the application of criminal guiding cases,normative documents describe the application of guiding cases as "should be referred to",and can cite the guiding cases as reasons to make judicial decisions.As for the effectiveness of criminal guiding cases,there are mainly the opposition between the fact binding force and the normative binding force.In fact,the effectiveness of criminal guiding cases in China is not the binding force in fact;the effectiveness of criminal guiding cases is a normative force,but the normative force is weak,which is essentially different from the effectiveness of formal legal sources.The effectiveness of the guiding case comes from its normative power as an authoritative reason in legal argumentation.The content of the guiding case determines its effectiveness to a certain extent.The interpretive criminal guiding case has the effect of reference,while the declarative criminal guiding case has the effect of compliance.In the application of technology,the judgment standard of "similar cases" is not only factual,but also normative;in the specific judgment,we should introduce the constitutive elements of crime and the establishment elements of sentencing as the judgment standard.At present,the main reason why the effectiveness of criminal guiding cases can not be demonstrated is that there is no clear legal consequences for the violation of criminal guiding cases.In the future,after the criminal guiding cases replace the judicial interpretation and become the main form of interpretation,we should clarify the legal consequences of violating the criminal guiding cases to enhance its effectiveness,cancel the " should be referred to " provisions,and improve the way of invoking accordingly.In the aspect of system guarantee,there are still some problems in the selection and release mechanism of criminal guiding cases.In order to make the guiding role of criminal guiding cases play better,we should make targeted adjustment.In the aspect of selection,compared with the naturally generated precedent system,the criminal guiding cases in our country show a kind of bottom-up administrative selection.On the one hand,this kind of selection depends on the enthusiasm of the case handling judge to recommend the case.On the other hand,this selection method cannot guarantee that the guiding cases can be released in the first time to meet the needs of judicial practice.Therefore,we should weaken the administrative characteristics of the way of case generation,adjust the selection conditions of criminal guiding cases,and improve the generating procedure of guiding cases,so as to improve the guidance and timeliness of guiding cases.In the future,if we replace judicial interpretation with criminal guiding cases,we need to greatly reform our case guiding system and learn from the successful experience of Western case system.As for the subject of interpretation,the power of legal interpretation of the Supreme People’s procuratorate should be abolished.The reform of the guiding criminal case system should focus on the core elements of the case system,that is,to build a "case" system with Chinese characteristics on the basis of the persuasion of cases and the support of the trial level system.