Probing About Criminal Judicial Precedent Of China

The most essential requirement, the most primal requirement and the simplest requirement of judicial justice are the same "similar sentences in similar cases", especially in criminal lawsuit. That there are distinct sentences in similar cases causes judicial criterion differs from each other in different places which will seriously damage the judicial justice and authority. Although the case instruction system issued by the Supreme People's Court and the Supreme People's Procuratorate has partly solved the contradiction between the limitation of written law at the present stage in our country and the social reality of distinct sentences in similar cases it has some deficiencies: firstly, the legislation position of the case instruction system is not clear; secondly, the subjects who can make the instructive cases are too much; thirdly the instructive cases have no relevant legal validity; fourthly, the application of case instruction system is not unified in practice; fifthly, coordinated measures such as necessary surveillance system are imperfect.The criminal case is relating to a person's freedom, property even life. the importance of the handling criminal case impartially is beyond doubt. Therefore, it is very critical and important to perfect the case instruction system. The precedentization of the criminal case instruction system may solve the its problems as follows: the first is the legislation positioning of the criminal instructive cases; the second is that the subjects who can make criminal instructive cases have their particularity; the third is the legal validity of criminal instructive cases; the fourth is that it can provide the binding force for the unified application of the criminal instructive cases in judicial practice, promotes the realization of judicial justice and maintain the judicial authority.Through analyzing the precedent or similar system in Common Law System and Civil Law System, and modeling that in Japan and Taiwan of our country the author proposes two patterns of constructing of our country's legal precedent system. One is that the criminal instructive cases should have the factual validity. If the criminal instructive cases issue by the judicial organization had not been carried out, the litigant may take this as a reason for a appeal or a petition, to request judicial organization reject the appeal or petition to rehear the case to pass a new judgment or sentence in the original instance or in procedure for trial supervision. Another pattern is to take the criminal instructive case at our country present stage system as a foundation, and then precedentize our instructive cases, enabling it to have the same legal validity as accurate judicial interpretation.According to the above two patterns, both conform to the fundamental realities of the country at present stage, and does not violate our country's constitutional government system. Along with the appearance of the stipulation on criminal instructive case system in our country and the perfection of criminal instructive case system, the authors believe that the second pattern conforms to the law application in present China. The construction of the criminal legal precedent system is a long-term process, which cannot be done in one action. For China's criminal legal precedent system, it wants both to persist our country constitution and the criminal law basic principle, and persist its own basic principle of legality. Establishing criminal legal precedent system of the present stage must be on the basis of the criminal instructive cases system and then gradually perfect, make it institutionalized, standardizationzed. ?...