On The Application Of Guiding Cases In People 's Courts

Case Guiding System is an important measure to guarantee judicial justice in the process of judicial reform in China. With the publication of the first group of Guiding Cases, the Case Guiding System has formally entered into the stage of judicial practice. As the only official document on Case Guiding System at present, The Provision of the Supreme People’s Court on Case Guiding doesn’t explicitly formulate the way to applicate the Guiding Cases, and there are many gaps on the judicial application of the Guiding Cases in Chinese law circle.We have to know what are the Guiding Cases firstly in order to applicate them. By clarifying the definition, properties and the effect of the Guiding Cases, we know that the Guiding Cases are effective judgments which are selected and published according to legal procedure by the Supreme People’s Court and used to solve the law application problems within the court system for judges in courts at all levels when they are trying hard cases. The Guiding Case is a type of legal interpretation which aims at unifying the application of laws and compensating the shortcomings of written laws. By this mean, the Guiding Cases are not sources of law, so they don’t have legal binding force, but only have some binding force in practice.Then we should discusses the objects and methods of the judicial application of the Guiding Cases, and constructs a whole mode of the judicial application of the Guiding Cases by comparative analyzing the differences of the precedent systems between common law system countries and continental law system countries. The applicable objects of the Guiding Cases are hard cases, and the main model of legal reasoning of the Guiding Cases is judicial syllogism which takes analogical reasoning and deductive reasoning as the core and is similar to the main model of legal reasoning of the precedent system of the continental law system countries.Finally, we have to clarify the guiding parts of the Guiding Cases and the way to applicate them. Not only the "main points of the Case" of the Guiding Cases, but all parts of the Guiding Cases are effectiveness. Judges can not quote the entire Guiding Cases in the judgments when they are applicate them. Judges can quote the parts of "main points of the Case" and "reasons of the judgment" of the Guiding Cases to write the part of "Court finds that" of the judgments. Besides, Judges can avoid the use of the Guiding Cases through "Departure Reporting System" when necessary.