Precedent Guiding Institutional Research

The precedent directing system means to take statute law as the main body assisted by directive precedents, so we could take reference of some methods of case law system. Our current practice of legal system cries for the implementation of the precedent directing system. This kind of reforming measures on the rules reflects not only the Chinese characteristics, but also the general tendency of the gradually integrating development of the two legal systems in the world.The first part is explicating the meaning of the precedent directing system by introducing the precedent system of the UK and the USA. The UK and the USA has two core principles. The most importent is 'following the precedent", the other is "the precedent is the law". The precedent system emphasizes "the life of the law which is enperience is not the logic" . It emphasizes the different deal with the different things. The precedent system as a complete system has specific law premise. We can not establish the precedent system fastly because of reality in our country. There is obvious difference between the precedent directing system and the precedent system. The main differences are nature and the legal effect. The precedent system in fact is "judges make law". The precedent of the precedent directing system should have "factual legal effect".The second part is discussing minutely the theory base of the precedent directing system by the legislating, judicature and the tendency of the two legal systems' mutual learning. The high abstraction makes statue law hard to directing and judging the concrete behavior. It proves by investigating the history that the main method of making up the defects in statue law transform legislating to judicature. The statue law of China has special defects such as "policy law" the structure being too rough and the subject being too simple. It is the best way to create the precedent directing system to make up the above mentioned defects in "policy law". In the judicature, the precedent directing system involves many legal function as the following: standardizing the judicial measurement and regulating the judicial discretion, enhancing the quality of judges and strengthening judicial recognition, guaranteeing judicial independence and so on. The statue law countries pay more and more attention to the function of precedents. They make up the defects in statue law using precedents. They introduce new legal principle and legal spirit to make the law to adjusting to the need of developing society in maintaining the equability and safety of the statue law.The third part is analysing the precedent directing system of our country in necessity and probability. We don't have the case asking for instruction system in the ststue law, but this system that has been a important method and a adjudgment routine has been derived from the past in justice. But it has disadvantages as following: breaching directly the principles of the adjudgment independence and judge directly, infringing the litigation of party, and reducing litigation efficiency. The precedent directing system having two-bit cost is a effective innovation to substitute the case asking for instruction system. The superior courts supervise the lower court that could reduce feasibility of asking for instruction, and it also incarnates the transformation from legal explaining power to legal explaining technology. Justice is a course of applying concretely law. It would produce legal explaining necessarily when courts apply the nonrepresentational law to rich and colorful cases. One of approaches of innovating nonrepresentational legal explaining is perfecting the precedent directing system. There are many exhibitions about attaching importance to precedents in ancient Chinese such as cases as secondary part to codes. There are realistic soil of the precedent directing system including the case guidance in practice and more self-contained judicial organizations and judicial systems.The fourth part expounds creating the directive precedents. Creating the directive precedents is where the shoe pinches of the precedent directing sysytem. Our country is concentrative and uniform. The positive law has absolute force adeffect as a legal origin in our country, but generating the directive precedents is a new thing. It needs to consider synthetically the idiographic situation of our country about lopsided development The creation of directive precedents should adhere to the principle of validity, the principle of rationality, the principle of clear and materiality and the principle of combining cautiously. The subject of creation and the organization in charge of making announcement about the precedents should be the Supreme People's Court because that creation needs high quality judges. The condition for the creation of directive precedents is that: having content about explaining law, the judgment reason and result have positive sense about society value tropism and legal development in the future(the case is novel and it apply law rightly to accept and judge) and having given form request. The procedure of creation includes selecting and delivery, examining and approving, announcement, and abolishing. The hardnesses include as follow: connection between superior courts and lower courts, logic style of judgment writ and so on.