The Study Of Judicial Application Of Guiding Cases

Judicial application of the guiding case is the core problem of the case guiding system, it is not only related to the basic theory of guiding case, but also related to the technology and methods. This article first discusses the nature of guiding case, the effectiveness of guiding case, the function of the guiding case. And then this article analyses the technologies and methods used in the judicial application of the guiding case, then summarizes the practice and existing problems of guiding case judicial application, and finally put forwards safeguards to perfect our judicial application of guiding case.The text is divided into six parts. The first part introduces the research background, research status, research significance and research methods. The existing research is insufficient to support the goals of case guiding system, and therefore it is essential to study the judicial application of the guiding case.The second part analyses the nature of guiding case, the effectiveness of guiding case and the function of guiding case. The nature of guiding case is in equivalent to quasi-judicial interpretation; the effectiveness of guiding case is fact binding effect, only as referee reason; the function of guiding case is to make up the lack of statutes, which itself is a legal interpretation mechanism.The third part analyses the technologies used in the judicial application of the guiding case. These technologies include:case comparison technology, reasoning and argument technology, rules reference technology and exclusion technology. We can learn from the case law of the common law system and precedent of the civil law system, because they are more mature and the technologies are also fairly standard.Fourth part analyzes practice and existing problems of the guiding case judicial application. Now there are some obvious problems, such as the rate of guiding case application is low and mainly in civil cases; the application is arbitrary and implied; the judges lack the thinking of the case application; judges lack the technologies and methods required by the application as well as the lack of convenient case retrieval approach. The fifth part discusses the safeguards to perfect judicial application of guiding case. Such as perfect the system of education, study, training and incentive of judge: to establish filing system of departure from the guiding case; to establish supervision system of guiding case application; to establish and perfect the repair and conversion mechanisms of the guiding case; to optimize selection mechanism of guiding case; to improve the information technology of guiding case retrieval.The final part recommends that Supreme People’s Court formulate implementing rules as soon as possible, refine the technologies and methods used in the judicial application of guiding cases and improve the relevant security system, develop and improve of case guiding system with Chinese characteristics continuously.