Research On Status Of Case In Source Of Law In China

Since we restore the construction of the legal system after the foundation of China, many important laws have been made. But the construction of our legal system is still deficiency. As the development of social life is speeding up, the existing law can’t adapt to the diversification needs of the complicated social. The typical case which our supreme court promulgated, played a very important role in the period of legal system the transformation in China. It not only made up for the defects of the law, but also provided an uniform standard of applying the law for the lower court. As our case guidance system is established in recent years, the jurisprudential circle began to study case further. It is necessary to have a system study on the status of case in the sources of law. This article is divided into five sections to study this.The first section is to pose the question. Because the courts often have different decisions in similar cases. The supreme people’s court taken many measures to curb this consequence such as publishing cases. Scholars have had a heated debate on whether the case is one of the sources of law in our legal system. Now admitting that case is one source of law in China, is the urgent solution to establish case law system.The second section is to elaborate the development of case as a source of law. In order to further study the deeper reason of establishment and improvement of the case in our country, this section will study the status of case in source of law and the role which case played in the process of the law development, from the historical perspective. It is divided into three historical stages to study how the case developed, which is the ancient, the stage of the republic of China and the stage after liberation.The third section is to study whether the case is one informal source of law. Since the case haven’t been given the effectiveness, there is a.debate on the case as one source of the law. Since the supreme people’s court promulgated cases by the1980’s. some scholars admitted case’s status as one source of law and claimed to establish case system in China. But some scholars denied that the validity of the case and opposed to establish case system. Recently as the supreme people’s court starts to establish the case guidance system by issuing relevant documents, academic circle has united to admit that the case is one informal source of the law in China. At the same time, every people’s court quotes case actively in the judicial practice, which means the status of case in our legal system has established.The fourth section mainly study the legal effect of the case in China and the coordination with other sources of law in the justice judgment. In November2010, the supreme people’s court issued "regulations on the work of the case guidance", which define the case it promulgates with the legal effect of "reference". After that, many scholars still have debate on the legal effect of case. In this part, we study the legal effect of case from the angle that it is and the angle it ought to be, then endow the case with "facts validity". Then problems of its effect in judicial work and coordination with other sources of law must be solved.The fifth section is the conclusion, which summarizes all this paper.