On The Case Guiding System Of The Supreme People’s Court

Certain deviation exists in the theoretical basis and practical operation of case guiding system of the Supreme People’s Court of the People’s Republic of China. Therefore, it is necessary to clarify the theoretical basis of case guiding system, and have a further study of the validity, generation, reference applicability and other issues of guiding cases.First, the theoretical basis of case guiding system. Guiding cases play an active role in making up the fuzziness of legal language and the limitation of statute law. Therefore, we should give full play to the contextuality of guiding cases, and try not to transform them into "judicial interpretation" or "statute law" in disguise.Second, the validity of guiding cases. Generally speaking, guiding cases are not formal legal sources, but have "de facto binding force", and are limited to their "basic facts","judicial results","judicial ground", and judicial rules and spirit behind; while "key judicial points" can only serve as auxiliary references to the comprehension of guiding spirit. In addition, two circumstances should be distinguished while confirming whether a guiding case has retrospective force; even if the guiding case has retrospective force, its retrospective force should be restricted to certain extent.Third, the generation of guiding cases. First of all, the processes of "cutting" and "enriching" original judicative paper should be removed from the existing generation procedure of guiding cases. Second, the selection of guiding cases should adopt stringent standards. Third, the three parts of guiding cases, namely, basic facts, judicial results and judicial ground, should have de facto binding force; while the remaining five parts only have identification or auxiliary function. Fourth, guiding cases should become invalid immediately after the decision on abolishment has been made by the Judicial Committee of the Supreme People’s Court and published on corresponding designated media. Last, the reference applicability of guiding cases. As a core issue of case guiding system, the reference applicability of guiding cases involves the retrieval, identification and practical reference of guiding cases similar to the pending case, as well as related legal remedies. While referring to a guiding case, firstly we should compare the factual circumstances and value between the pending case and the guiding case, and then have the justification demonstration on the similarity or difference between the two cases. In addition, the proposition to consult applicable guiding cases is an important litigation right of the parties involved.To sum up, it is urgent to solve the above-mentioned problems in the further operation of the case guiding system of the Supreme People’s Court.