Theory And Practice:Construction On Civil Litigation Cases Guiding System In China

The Supreme People’s Court issued "the People’s Court second Five-Year Reform Program (2004-2008)", on December26,2005,in which formulated the framework of the Cases guiding system. After November26,2010, the Supreme Court has issued Provisions on cases guidance (short for Provisions below). The Issue of the provisions may take a significant role on China’s construction of Cases guiding system.Reviewing the judicial history of China, something similar to guiding cases has existed all the time, nothing but in a more different form like today’s. To some extent, the guiding cases system has already to act in China’s contemporary judicial practice, before the provisions has entered into force. Such as judicial interpretations which annexed with typical cases, judicial meeting review, judgments and model cases which issued on the gazette of the Supreme People’s Court, issued by the supreme people’s court. The series activates of the Supreme People’s Court positively affected the lower court. The principal task of the guiding cases system is to unify the application of the judicial process.Because the resemblance, in some respect, of guiding cases system and case law both in common law system and civil law system, researchers heated discussed the different between them. However, the issuing of the provisions was a limestone in the construction of china’s guiding case system, before that, all researchers haven’t know where to go, discussion only discussion,because whether it may convert into practice still unknown. In spite of the Provisions provided the guiding case system in a macroscopic view, the particular operation details still undo, we need do more work.The thesis mainly analysis one of the questions of the Chinese elements guiding case system, namely how to construct the guiding case system in civil litigation in mainland China. Civil procedure plays an important role on the process of resolution of dispute not only civil case, but also commercial and economical case. Nevertheless, such cases dominated a large number of the gross amount of cases. So, as soon as possible, the construction and perfection of the guiding case system in the field of civil procedure were appears necessary, and in the scope of the criminal procedure the supreme people’s court has formulated the Guiding Opinions on Sentencing already, which will gradually further the activates of the standardization of the punishment. And that’s the original idea of the supreme people’s court.Take the provision itself, in the one hand, which indicated that the system has worked, from the "Laboratory" to "manufacturing line", will taken into affection; on the other hand, the previous arguments concerning the construction of the guiding case system has provided a lot approach of how to perfect the system. As far as I am concerned, we should build a bridge between the practice and theories. If we taken the provisions as the practice, then, the theories discussed before the provisions issued, inter alia the doctrine of the case law, the link with each will benefit the construction of a reasonable system.The key point of the paper is that we must take the case law serious, in a perspective of empirical and realism, especially the application technique of the case law, such as the process of legal reasoning. And in according with the true circumstance of China, reification the research, then it will run well. The approach was not only a new attempt of research method, but also the change of thinking model. The author expected that both the research for professional purpose/research by government and professors may take the research in a pragmatic, objective way.The thesis is mainly structured into three parts. Part1covers chapter1, and part2includes chapter2, and the last part, contains chapter3to4.Part one provide an overview of the guiding case system of civil procedure; part2points out the reason of construction of the system; and the principal aim of last part focus on the specifics of the perfection of the guiding case system in civil procedural.