Research Of The Case Guidance System

Uniform administration of justice is the basic connotation of the course of justice and the basic requirement of constitutionality. "Different co-contractors," non-uniform application of the law runs counter to the idea of the uniform administration of justice, which is the major problem of the judicial practice at present. It has seriously undermined the trust of the judiciary and has damaged the authority of the judicature. To deal with this problem, over the past decade, the administration of justice advocates and explores to set up the case guidance system. "The second five-year reform of the People's platform" also clearly poses to set up the case guidance system with Chinese characteristics to unify scale of justice and accurate application of legal norms. Since then, the case guidance system appears at the process of Chinese judicial reform.The case guidance system will reduce the non-uniform situation of the justice administration, and ease the situation of lags and non-uniform of legislation in the transition period in China, and restrain the discretionary power of judges, and suppress the judicial corruption and enhance the course of justice and efficiency to promote social harmony. Therefore, this study has important theoretical and practical value.This article is divided into five parts:The first part introduces the background of setting the case guidance system in our country.The second part introduces that our country has lagged behind because of statute law's abstract, principle and separated, while in the judicial practice, many new situations and new problems emerge that it is unable to meet the needs of trial practice. At the same time, in the judicial practice judicial and judges understand the law differently. Therefore, to introduce the case guidance system is necessary.The third part introduces that Because of the tradition of the case system in our country, the judicial practice since the founding of the People's Republic of China, the support of theoretical study of the academic, as well as the experience of common law and civil law, it makes the case guidance system feasibly in our country.The forth part introduces that because the case guidance system learns from the system of jurisprudence in civil law countries, it's implement in china which is a mainland legal system country has sorts of difficult problems inevitably, for example, whether Chinese judges are able to use the case guidance system; how to punish the judge who has violated the case guidance system; whether procuratorate has the ability to monitor the "guiding case" ; whether the case guidance system will cause judicial power to violate legislative power.The fifth part introduce that general consideration on the questions above, it needs to build the case guidance system with Chinese characteristics carefully. The more important questions are: the nature and effectiveness of the guiding case; the criteria that should be followed to set up the case guidance system; and some specific questions in the practice.The possible innovation in this article is that based on full consideration of conditions in China and analysis of constraints to the case guidance system, this study will propose the operational implementation of the case guidance system. This study will seek to build the theoretical framework of the case guidance system with Chinese characteristics to promote judicial unification,Because of limited of resources, discussion in this article is mainly based on existed data. The discussion, such as, what problems the case guidance system will encounter in practice, as well as specific ideas of the case guidance system, is only a academic analysis. Therefore, this article is lack of empirical studies.