The Nature And Effectiveness Of The Theory Of Chinese Instructional Cases

Case guidance system is an innovation on theory and practice in our country judicial proceedings, but its innovation not beyond our existing legal framework and legal system. Establishing the case guidance system aims to make up for the lack of statute laws, safeguard the legal unification of our nation and realize social fairness and justice. Since released the first batch of guiding cases on December20of2011, the supreme people’s court has already published six group of26guiding cases by January26of2014. However they are few applied to the judicial practice, this is largely because the supreme people’s court’s regulation of case guidance is relatively principle on "similar cases ","should refer" leading to the doubt of contents. The practical application of guiding cases also do not make specific provision. Though case guidance system has been under way, but there exist many problems in the nature, effect and application aspects, which lead to a big challenge and resistance in terms of guiding case’s application.Based on the judicial unification in the aspect of applicable and connection with legal claims, consensus on the necessity of establishing and improving case guidance system have gradually reached. However, a fundamental question emerged, namely how to determine the nature and effectiveness of instructional cases? The nature is a very important basic theoretical problems in the case guidance system. Any system only for making an accurate positioning about its properties can make the system target, find their own position and make the system really work. Guiding cases is no exception. In this paper, I select three mainstream views on the nature of guiding cases about judicial interpretation said, case transition said as well as the applicable law said. For the problem of the effectiveness of the guiding cases, theory and practice are also put forward many constructive suggestions. This article mainly selected three mainstream views to discuss the effectiveness of the guiding cases and prove the feasibility of the binding in fact. The nature and effectiveness are theory basis to discuss the case guidance system, which become the key to show its glamour and implement smoothly. They are also the focus of this paper.