Building The Criminal Judicial Precedent Model In China

The transplantation of law from different legal systems and learning the advancing legal philosophy are the basic parts of the development of modern legal regulations. The case law system, rooting in the Common Law, is now learnt and absorbed by many traditional civil law system countries. One of the reasons of approving case law in the civil law system is its advantage on overcoming the narrow limitation of statute law, such as having ambiguity and too general. The case law system is in favor of achieving individual justice, promoting judicial impartiality and integration, and finally ensuring the judicial authority to the whole country. This dissertation, based on the research of the Philosophy of case law and foreign case law system, contains the analysis on current model of criminal judicial interpretation in China, points out the positive value of leading in the criminal judicial precedent model and puts forward the assumptions of building the criminal judicial precedent system in China.There are four parts in this dissertation. First of all, the primary definition will be introduced. The legal value produced by criminal judicial case law system will also be discussed in this part, both from the viewpoints of theory horizon and practice department.The second part of this dissertation will look at the history, inspecting the characteristics and development of judicial case law, both inside and outside the country. It will be mentioned that the basic character of case law system in the common law countries is to achieve the supplement to law. The character in civil law countries, however, presents in the procedural practice to interpret the current statute law. Because of the fact that China has an obvious case law tradition in judiciary, this dissertation will also point out those ancient cases will play a very important role in the developing history of Chinese legal system.In the third part, the necessity and feasibility will be discussed. Moreover, combining with the analysis on the difficulties of current judicial interpretation model, some assumptions of building case-interpretation model will be put forward, to substitute the current article-interpretation model.Fourth, some suggestions to the practice area, including formulation, operation and guarantee, will be set out in this part. The dissertation points out that a criminal case law system, putting the Supreme People's Court of the People's Republic of China at the core, and a well-designed system of filtration and publication should be introduced. As such, the criminal cases could affect positively both on leading the judgment and constraining the adjudication of punishment. Meanwhile, the writer also suggest to set a supporting system and a service system in order to ensure the criminal judicial case law system operating perfectly.In the conclusion part, the difficulties might meet during the innovation will be listed. Furthermore, the writer will also point out some principles which should be persist in during the innovation.