On The Legal Source Of The Guiding Case

Guiding cases come from the case guidance system.Case guidance system is an important judicial innovation and breakthrough based on China’s basic national conditions,constitutional structure,judicial system,legal culture and historical practice.Its normative influence has received positive response in judicial practice.A new generation mechanism of judicial rules has been evolved and developed,and the normative application system with the coexistence of laws,judicial interpretations and guiding cases has gradually emerged.However,there are still many problems that need to be improved in the current citation of guiding cases.Based on the legal source theory and legal methodology,this paper makes a holistic theoretical elaboration on the source of law of guiding cases from the two aspects of micro argumentation and grand narrative,and organically integrates theoretical jurisprudence and judicial practice.It can not only provide a stronger theoretical support for the case guidance system on the basis of revising the traditional legal source theory,but also provide practical guidance for improving the case guidance system with Chinese characteristics.Based on this,with the perspective of legal globalization,this paper analyzes and draws lessons from the experience and wisdom of the case system operation in the developed countries with the rule of law in the extraterritorial continental legal system.The formal legalization of guiding cases may face challenges at different levels and tries to put forward solutions from four aspects: enhancing the consensus of legal sources,enhancing the initiative of guiding cases,building a large-scale database,and institutionalizing the basic constitution.According to the empirical analysis based on our country’s judicial practice,since the promulgation of the first batch of guiding cases in2011,there have been some problems in the operation of the case guidance system,such as limited number of guiding cases,low quality,limited effectiveness and low citing rate,and there are still deficiencies in the system design,standardized operation and supporting measures.But the fundamental reason is that the regulation of binding force of guiding cases is not clear.Focusing on the topic of whether the guiding case can be regarded as a formal legal source,on the basis of critical reflection on the traditional legal source theory,the research perspective is changed,and the legal source of judicial centralism is introduced,which lays a theoretical foundation for the later normative analysis and demonstration.Through organization and analysis of the basic theory and judicial practice of guiding cases in China,it is concluded that guiding cases should have legal binding force.At the same time,it is theoretically proved that the guiding cases,as the source of formal law,can promote social fairness,enhance judicial efficiency,and enhance the acceptability of judgment.As a formal source of law,guiding cases have the legitimacy of conforming to the constitutional principle of governing the country according to law,practicing the concept of equality in China’s constitution,and conforming to the norms of the source of law.As a source of formal law,guiding cases can realize the creative transformation of Chinese precedent tradition,conform to the trend of judicial reform in the world and meet the needs of judicial practice in China.Based on the above analysis,this paper draws the conclusion that at the level of theoretical development,practice accumulation and practical needs,guiding cases for formal legal sources have rationality,legitimacy,and reality.In terms of the in-depth promotion of the case guidance system,guiding cases need to achieve a qualitative improvement from de facto binding to legal binding.The formal legalization of guiding cases needs to deal with many difficulties.In practice,it is necessary to solve problems from various aspects,enhance the legal source consensus of the legal community,and build authoritative interpretations;strengthen the improvement of the guiding case itself,to lay a good foundation for its legalization;with the help of information technology,establish a guiding case database,efficient play its exemplary role;reforms are made in the subject and procedure of issuing guiding cases,and the institutionalization of guiding cases as a formal legal source is realized on the basis of respecting the constitutional structure.To endowing the guiding cases with formal legal source,the innovation of this study can be summarized as two levels.One is at the theoretical level,introducing the perspective of judicial centralism,linking the guiding case with the theory of legal source,borrowing the three-level dynamic view of legal source,combining institutional analysis with normative analysis,and promoting the comprehensive study of the formal legal source of guiding cases.One is at the practical level,breaking through the old path of traditional legislation,facing the institutionalization of the formal legal source of guiding cases,and advocating that on the basis of respecting the constitutional structure,the promulgation subject of guiding cases should be promoted from the Supreme Law and the Supreme Procuratorate to the Standing Committee of the National People’s Congress.