On Study Of The Improvements Of Chinese Case--Guiding System

In the legal construction, judicial unity has been a vitally important theme all the time and in the process to pursue judicial unity, there is a flood of criticism on the phenomena that the same kind of cases is handled in different approaches. Therefore, academia starts to attach attention to judicial case, because judicial case has the principle of following precedents which enables the similar cases to be addressed in the similar way and promotes the judicial unity. Along with such a goal, numerous places begin practical experiments about judicial case study. From the experiments in places like Zhengzhou and Tianjin to the document of Regulations on the Case-guiding Work issued by Supreme People’s Court, case-guiding system has been a possible model for China to make reference. Under such a background, the thesis attempts to study and analyze case-guiding system so as to make it more practical and hopes such a judicial reform can really cope with the practical problems in the legal construction of China.The thesis is composed of four chapters, and the first chapter studies the basic problems of case-guiding system. Firstly, in order to define the concept of case-guiding system, this part clarifies the relevant concepts of it and distinguishes the case from judicial case, case-guiding system from judicial case system. The case-guiding system is regarded as a creative judicial system which is appropriate for the activities that are regulated by laws. Then the development history of case-guiding system is generalized. Since China is founded, both the compilations of some typical cases and the researches into the case-guiding work have laid a solid foundation for the case-guiding system and finally the Provisions on Case Guidance is issued. From then on, case-guiding model has been established. The reason choosing such a model is that this model has unique functions and values. In the following, four unique advantages of case-guiding system in judicial activities have been introduced:to provide approaches to hard cases, to enlarge the guiding ways of system services of courts, to standardize the discretion of judges and to strengthen the convincing power of accreditation.Chapter two mainly introduces the manifestation form and existing problems of case-guiding system. The first section briefly introduces and analyzes the manifestation form of case-guiding system, namely the Provisions on Case Guidance. The second section summarizes three problems existing in the present case-guiding system and analyzes the arguments in the establishment, effects and application of case-guiding system and the problem that it is difficult to apply case-guiding system into practice.Chapter three focuses on the ancient Chinese judicial case and judicial case systems of western countries that are relevant to case-guiding system. This chapter studies ancient Chinese laws from a macroscopic perspective, figures out one clue to the judicial case and generalizes the functions that the judicial case has in ancient times, namely filling the codified law. In the west, both the Anglo-American law system and the continental law system have judicial case. Particularly in countries of Anglo-American law systems which are regarded judicial case as the original, it is much easier to gain the precious materials about judicial case and there are numerous techniques worthy of being learnt in the judicial case, such as distinguishing technique and evasion technique. Hence, this chapter explores the judicial case system of western countries from the perspective of validity and application of judicial case.Chapter four also plays an important role in the thesis. After a concrete examination of judicial case both at home and abroad, this chapter emphasizes the present situations and provides suggestions to improve case-guiding system. The author puts forward targeted suggestions in the aspects of the creating process of guiding-case, validity and guarantee, the application conditions and process of guiding-case and the corresponding guarantee system of case-guiding system, and proposes some countermeasures to strengthen the validity of guiding-case and enlarge the application techniques of guiding-case, thus hoping that the case-guiding system can become more mature and play an more crucial role.