The Research Of The Operation Of Case Guidance System

This paper firstly analyzed the difference between the leading case and the judicial interpretation, and then to position the leading case and the cases guiding system. And then the paper analyzed why to introduce the cases guiding system, in order to transit and change the judicial interpretation into the cases guiding system.To discuss the cases guiding system, the legally binding carriers is on the premise. As to the legally binding carrier, there were three views: reasons for decision(ratio decidendi), rules and guidance, and the judgment as a whole. After the analysis of these views one by one, and then I drew a conclusion that the legally binding carriers are ratio decidendi and the rules and guidance.Because the ratio decidendi is as one of the legally binding carriers, it is not easy to identify and quote compared to the traditional judicial interpretation of the general rules. Therefore, the distinguishing technique takes on a great deal of importance. By introducing the distinguishing technique in the western case system, this paper pointed the difficulties in the current system in China: the traditional thinking of the obstacles to the judge, the lack of elite group of judges and the judgments lack of adequate judgment. Followed by the introduction of the difficulties, then softening the differences and using the distinguishing technique moderately in the cases guiding system.On that basis, further analysis is on whether the leading case could be cited in and its reflection in judgments. By analysis of the rationality and feasibility, then the paper analyzed several problems: who can cite the related leading case, when to quote, and what to do if someone violated the leading case. Then the paper pointed out that the latter judge could quote the leading case in the judgment to make the guiding influence of the legal cases carried out.