Study On The Validity Of Guiding Cases

The case guidance system with guiding cases as the carrier is an important part of the socialist judicial system.The Supreme People’s Court has begun to guide the practice of trial by issuing guiding cases and has issued 178 cases in 31 batches until now.The case guidance system has been gradually standardized and mature after years of development.Meanwhile,guiding cases are gradually releasing their vitality in strengthening trial guidance,unifying the application of laws,and providing adjudication rules.At the same time,the theoretical and practical circles have been concerned on the issues arising from guiding cases and the focus has been refined.In particular,a more comprehensive and detailed analysis on the validity of the guiding cases has become a trend from the interaction between theory and practice.From the operation of the case guidance system,the application of guiding cases mainly faces three problems: 1)the lack of understanding regarding the validity and functions of guiding cases,i.e.,“the application of guiding cases lacking the foundation of legitimacy”;2)the uncertainties regarding the conditions and methods for referring guiding cases,i.e.,more explorations needed to be invested in “how to apply guiding cases”;and 3)the question of“where guiding cases go?” in the transformation and development of the case guidance system under the background of the reform of the judicial system.To solve the above three problems,it is still necessary to go back to the core issue,i.e.,the validity of guiding cases.The introduction points out that the validity of guiding cases of the Supreme People’s Court is an unresolved problem in theory,in legal provisions or in practice.This resolved problem is related to various problems arising from the application of guiding cases.Meanwhile,it has affected and restricted the effect application of guiding case in judicial practice to some extent.Once guiding cases are not applied effectively,the formal justice preset by the case guidance system will not be realized.As such,the foundation of the case guidance system will be eroded in the long run.In order to promote the steady and healthy development of the case guidance system,it is urgent to clarify the validity of guiding cases in jurisprudence.Based on this,the disputes over the validity of guiding cases,the dilemma of the application of guiding cases in judicial practice can be resolved and the foundation of the case guidance system can be consolidated.To study the validity of guiding cases,two dimensions need to be taken into account.One is to prudently define the validity of guiding cases within the legal system stipulated in the Legislation Law.The other is to maximize the unique function of guiding cases compared with statutory laws.The first chapter clarifies the theoretical meaning and practical meaning of the validity of guiding cases,so as to build an overall framework for systematically analyzing the same.From the definition,the validity of guiding cases refers to the binding force to the courts arising from the adjudication reasons or adjudication basis in the guiding cases issued by the Supreme People’s Court.From the criteria,the validity of guiding cases needs to be supported from different levels,such as ethics,logic and facts.From the composing letters,the origin,the content and the function are the core elements of the validity of guiding cases.In theoretically,the theory of the validity of guiding case is closely related to the theory of legal origin,legal interpretation,judicial system,etc.They are intertwined to form a “theoretical group”,which is used to analyze the internal mechanism and operation of the case guiding system and provide support for analyzing the internal mechanism,operation practice and improvement approach of the case guidance system.The practical meaning of the guiding cases validity theory is to direct,analyze,and judge the problems and phenomena encountered in judicial practice with theories and principles,to explain why guiding cases should be applied,how to apply,and to answer to the future of the case guidance system.The second chapter summarizes the problems for applying guiding cases in the judicial practice and analyzes the deeper problems of the validity of guiding cases behind the facts and problems.The problems for applying guiding cases in the judicial practice,for example,low application rate and irregular application,can be found via analyzing the release of guiding cases and the mode of judicial application.The appearances reflect deep structural problems,for example,the unclear carrier of the validity of guiding cases,the uncertainties of the validity,the weak potency,the range of validity,determine,and the guarantee for validity.These problems and the superimposed effect produced by their interaction have resulted in the ineffective operation of guiding cases,the insufficient effect,and the unclear development direction of the case guidance system.The cause may arise in that the judicial application of guiding cases is a systematic work involving multiple subjects,links,conditions,and paths.The degree and level of its application will inevitably be affected and restricted by various factors.In particular,imprisoned by the idea that the legal system of the China is not case law,the legal status and validity of guiding cases themselves are unclear,and the legal methods and techniques for applying guiding cases are immature.The third chapter clarifies the validity of guiding cases in jurisprudence and consolidates the theoretical basis of the case guidance system.In theory,“integrative” concept of law and the theory of legal validity provide a more comprehensive perspective,which integrates the formulation of authority,the correctness of content,and the effectiveness of society to ensure the integrity of the validity of guiding cases.Under the legal source theory of normative pluralism,guiding cases can be used as auxiliary,supplementary and subordinate legal sources,and be combined with statutory law to play the role of adjudication norms.Based on an internal perspective,this article demonstrates how guiding cases obtain validity in the static legal system,and the basis of validity is derived from the relationship in the hierarchical structure and the explanatory relationship in the framework theory.Based on an external perspective,this article demonstrates how guiding cases obtain validity in the dynamic process of formulation and application.The conditions include that guiding cases are formulated and released by competent authorities in accordance with prescribed procedures,the correctness of the content of guiding cases is widely recognized,and the guiding cases are with the minimum social effectiveness.To be specific,the validity of guiding cases is a “dual binding force” involving both normative and factual levels.At the same time,it plays the role of improving the legal system in provision and guiding judicial adjudication in practice.The fourth chapter combines the guiding case validity theory with judicial practice and provides a plan for systematically resolving the dilemma of guiding cases based on the context of our country.Considering the case guidance system is in the process of improvement and development,the dilemma should not be resolved in one step and overnight.On the other hand,it should be resolved with the respect to the judicial rules and in the steady progress based on the accumulation of experience.First,it is necessary to lay a solid foundation in terms of breaking through the traditional ideas,correctly understanding the relationship between guiding cases and statutes,formally establishing the legal validity of guiding cases,and cultivating judicial skills for applying guiding cases.Second,to overcome the validity problem of applying guiding cases,it is necessary to clarify the validity carrier guiding cases and its nature and strengthen the enforcement of the validity of guiding cases,its range and guarantee.Finally,the innovative development of the case guidance system with Chinese characteristics should be promoted by consolidating the foundation of validity,fully stimulating the effectiveness of the guiding cases,preventing the potential risks,and promoting the scientific and effective implementation of the case guidance system.The conclusion points out that the validity of guiding cases is a problem that has not been solved but it is necessary to be solved.This research clarifies the validity of guiding cases from the jurisprudence and provides a solution for the dilemma of the guiding cases application.It is an academic attempt that combines theoretical innovation and countermeasure research.With the deepening of theoretical research and the development of judicial practice,the validity of guiding cases in unifying the legal application and promoting the implementation of laws has start to show.However,there is still a lot of room for improvement,and the most critical is the issue of the validity of guiding cases.Based on the judicial practice,clarifying the validity of guiding cases in theory and providing a practical solution are the keys to further promoting the innovative development of the case guidance system.the validity problems in applying guiding cases still need to be summarized,and related opinions and conclusions need to be tested in practice.As such,the research on the validity of guiding cases should be a topic to reflected and improved in the interaction between theory and practice in the long term.