The Case Guidance System In China

So long time,the phenomenon of identical lawsuits with distint judgment is very common in our administration of justice.It not only damage the law's authority and fair,but also waste justice rescourses.The concept "guide caset" in the file refers to the judgment or verdict of a court,which possesses the status of legal source and the binding force ,and can be used as legal merits by courts in dealing with subsequent cases of the same kind. The precedent system is referred to as a system which sticks to the principle of taking statutes as a basis and precedents as supplementary.It involves the status,subject,form,effect,emersion,and application with respect to precedents.From the aspects of making up the defects of the statute law and policy law,promoting the judicial level and accumulating legal resources,it is demonstrated in the report that it is necessary to establish the system of precedent in China due to the following facts:the tendency of the two legal systems' mutual learning,the experience of China in mixture of law,the case guidance by the Supreme People's Court in practice,and local courts' probing into precedent system.Then it is argued that concepts must be innovated in building the system of precedent from the following aspectsrjudgesare not allowed to refers to make judgmem for lack of legal merits,and separation of powers does not exclude the proper combination of powers.With respect to the subject,the principle,the ,the condition,the procedure,the mechanism,the formal elements,the substantive elements,legal effect,and service system,etc,analysis has been done on the creation system of precedent in China. With respect to the principle,the condition,the procedure and the guarantee,etc.,analysis has been conducted on the application system of guide case.