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On The Directing Case System Of Supreme People’s Court

Posted on:2016-02-18Degree:MasterType:Thesis
Country:ChinaCandidate:J J WuFull Text:PDF
GTID:2296330461491630Subject:Legal theory
Abstract/Summary:PDF Full Text Request
In the process of the legal system construction, the justice has always been our pursuit, but in judicial practice, the phenomenon, "same case, different verdicts" has occurred frequently, seriously affecting the course of justice and its authority. To solve this problem, scholars begin to focus on the precedent system which has the principle of stare decision and plays an important role in realizing "same case, same verdict". However, due to the difference in legal system, precedent system lacks the soil for existence and application in domestic. On the basis of combining judicial practice in our country with the experiences from judicial precedent abroad, guiding cases system arises at the historic moment. Based on this background, the paper carries out the research on guiding cases system at the Supreme Court, hoping it would promote the system in playing better practical effect and such a new system could solve some problems that appear in our judicial practice.The paper is divided into four parts. The first part focuses on the study of basic problems in guiding cases at the Supreme Court. It mainly elaborates the generation, determination on the nature and significance of guiding cases system. Starting with a typical case issued by "Supreme Court Communique", it exerts direct effect in the generation of guiding cases system and introduces the practical foundation for the generation. Lastly, in the 1st part, the paper presents the system’s generation and its fundamental information. While regarding the determination on the nature of the system, there has always been controversy. Through the analysis of several mainstream views, the paper defines guiding cases’nature and effectiveness. And about the significance of guiding cases, it commands the theme primarily from the following four aspects, unity of legal application standard, filling the law loopholes, specification of judge’s referee exercises and reinforcement of judge’s theory argumentation.The second part mainly describes the selection of guiding cases. In addition to its effectiveness, the role of guiding case system also relies on the quality of the case itself, therefore, the selection of guiding case seems particularly important. Selection is the premise of application, which is directly related to it. So we need to deeply understand and grasp the selection criteria of guiding cases, then improve the selection procedure of it.The third part centers on the gist of guiding cases, an important part which is the abstraction and generalization of guiding cases. The exertion of gist influence the use of guiding case system in judicial practice, we need to understand its meaning and maximize its function.The last part mainly introduces the judicial application of guiding cases. The set of one system does not mean its success, what matters is how to apply such technology in practice, then plays its function and role. As for guiding cases system, how to apply guiding cases is the key and the difficulty. The judicial practice of guiding case system refers to such process:in the trial of the people’s court, when lacks statutory rules and other effective ways to make up for the premise, applying cases to the specific ones in accordance with certain principles and logic. It needs to comply with certain principles、conditions and technology in order to maximize its function. Guiding case system takes application as its principle and ignorance as its exception. Guiding case takes the following as its applicable conditions:lacking specific law making rules、existing specific guiding case rules、having similar facts with the case, whose judicial applicable rules mainly involve the alignment technology、reasoning technology、weighing technology、rule referring technology and application excluding technology.In brief, the directing case is very significant to the judges’ trials. However, at present, because of the vague legal position, with the addition of legal thinking pattern of the statute law to the judges, it is a very long time for the directing case to play a role sufficiently, Despite this, it is still worth to expect that the directing case plays a very important part in China’s judicial practice.
Keywords/Search Tags:Guiding Cases System, Guiding Cases, Referee Points, Gudicial Application
PDF Full Text Request
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