On China's Administrative Case Guidance System

Due to its vitality, case law system, originated from British Isles, had gradually infiltrated into countries beyond the reach of British and French legal system, and became the leading form of legislation together with positive law. Being stable and unified, case law, which respects judges' creativity and subjective initiatively to a great extent, is beneficial to improve judiciary efficiency and to realize judiciary fairness, case law has an unmatchable advantage over positive law (or statute law), and therefore has draw wide attention from the theoretical and pragmatic circles.With the progress of the study on China's administrative law and law of administrative procedure, many scholars have carried out in-depth research on law of administrative procedure. Since 1986, great achievements have been made on whether we should introduce the system of legal precedent based on some heated debate and deep-going study on jurisprudence. At present, two kinds of viewpoints are in sharp contrast, namely, one is in favor of the establishment of case law system and the other thinks otherwise. Each sticks to his own argument without consideration to its inadequacy, such as one-sidedness of the discussion and verification. The paper advocates that China should build up a system of administrative case guidance which complies with China's political structure and legal system due to the consideration of factors, such as the intrinsic advantages and functions of case law, the present situation of the judiciary system and its traditional characteristics. More importantly, case law system can effectively coordinate the stability and flexibility of law and perfectly combine judiciary fairness and benefit. At the same time, building up a case law system, which is supported by the proximity of the two legal systems, is an inevitable outcome of the progress of jurisprudence.The stability of statute law is not suited to the changing situation, what's more, it calls for time and experience to modify or stipulate laws, while the flexibility adaptability of case law can compensate for the deficiencies of statute law, which takes precedence over statute law in the field of administration. In modern society, the administrative right touches every aspect of our life. With the deepening reform of administrative system, the stagnancy of administrative law is self-evident. The administrative right should abide by law in accordance with our present concept of running state affairs under the rule of law.Chapter One clarifies the basic concept, the connotation, the extension and main characteristics of the system of administrative case guidance, and emphasizes its local characteristics in commensurate with our national conditions, and then makes a comparison between the system of case guidance and system of legal precedents in terms of their concepts, characteristics and historical backgrounds. This chapter also analyses the integration of the system of case guidance under China's political structures and judiciary system, which has laid a political and judicial foundation for the existence and development of this system.Chapter Two discusses the theoretical evolution of the system of case guidance in China. The first main issue is the introduction of case law system of British and American judiciary system, taking Britain and American as two examples to introduce the historical evolution, the developing process and the present situation of case law system. The second main issue introduces how continental law system has drawn lessons from case law system of British and American judicial within its own development. Two representative countries of continental law system, France, and Germany, and Taiwan region are selected as examples to be examined. France is a typical country under continental law system, pursuing statute law denying the sanctions of legal precedents; however, French administrative law is set up on the basis of a number of cases, which wins France a reputation rather than sabotage the law system. In German, a court is divided into five departments. The verdict of the constitutional court, which has a force of constraint on the following cases, plays a distinctive role in German jurisdiction system. Taiwan is a region of continental law system, but once the verdict is considered to be a legal precedent, it will have a force of constraint on courts of all levels.In this chapter, the explanation of the melting of the two legal systems is in great length. The factors, which contribute to the melting, are analyzed and seen as the theoretical underpinnings of the origins of law.The third issue, being discussed in this chapter, is the suitability of case guidance system which complies with our national conditions. Under the present political and legal system in our country, a total copy of a foreign system is unfeasible, because the lawmaking is in the charge of the legislature body and the judiciary institutions have no right to make laws. The essence of case guidance system, which is merely a kind of application, is that laws can not be stipulated by judges. Then the paper expounds the necessity of setting up the system of the administrative case guidance in our country in the aspect of its value pursuit, functions, and the specialty of administrative law and the situation of the legal system in our country.After that, the paper analyses the feasibility of case guidance system in our country in term of the survival space of case guidance system with the consideration of the legal traditions of case law in ancient China and the present legal environment, and the material prerequisites of the scientific and technological development, concluding that the establishment of case guidance system is not only necessary but also feasible.Chapter three envisages the establishment of case guidance system, including the clarification of the relationship between the present situation of the administrative justice in China and the system of the administrative case guidance; the application of the administrative cases in trial practices; the difficulties and details of setting up case guidance system, which shows my tentative ideas and understanding of the system of the administrative case guidance in China.Chapter four is the anticipation of the effectiveness of the system of the administrative case guidance. We are always full of good wishes and expectations of newly set-up system in the hope that it could play a significant role in our society. In view of the author's appreciation, the system of administrative case guidance is good to both the judges and the litigants, which enables the judges to safeguard the judiciary fairness and consolidation as well as its effectiveness. In the meanwhile, the litigants can have a sound judgment of their actions. More importantly, the establishment of such a system aims at the perfection of China's administrative law and the advance of China's legal system and the law and order in China.