Researches On The System Of Guiding Criminal Judicature By Using Established Cases Under The Context Of The Principle Of Legality

When China was established, our community had been in the transition interim, which had generally reached a consensus in our country. During this time, old factors and new factors are both in a state of confrontation and friction, which is prone to engender social conflict so that chaos and social unrest will happen in various fields. In these unstable times, economic development or human values can be easily changed at any time, and it also easily leads to a wave of crime. However abstract and hysteretic legislation cannot deal with the ever-changing social conditions,and it results to the emergence of the phenomenon that a large number of codefendant was different treatmented occured in the judicial process, which is contrary to the basic requirements of justice.Therefore,we need to unify the application of law and reach to the justice, criminal justice case’s instructional system came into being. And the supreme juditial organs are both pushing the system, so it was unfolded warmly and achieved initial results. However,the criminal justice system also has many unsatisfactory areas at the same time, e.g. the guiding function of criminal cases has not been fully exploited. In this paper, on the basis of the relationship between the principle of legality and the criminal casese instructional system, the paper combined with the problems which occured on the judicial practice.It helped to make the related theory perfect and it can help the judicial officersi’s judicial application and to develop the criminal justice system’s guiding function even further.The thesis consists of four parts altogether(not including the introduction and conclusion), as follows:The first part, the relationship between the principle of legality and the system of guiding criminal judicature by using established cases. First, the protection of the rights and the restriction of powers are essential connotation to the legal principle of crime. The law needs a statutory and solid body and its context must be clear which are basic requirements of the principle of legality. Secondly, the analysis of the plight of the basic requirements of the principle of legality.Since the requirements of the principle of legality depend on the specificity of law, whicn makes the emergence of the abnormal phenomenon that a large number of codefendant was different treatmented occured in the judicial process. In addition, due to the explicit requirement of legality is difficult to achieving so that the criminal discretion is inevitable which will damaging the principle of legality. Again, analysising the definition of the criminal justice case’s instructional system,namely, a judicial interpretation mechanism of criminal law’s application. Finally, we can know that the principle of legality and the criminal justice case’s instructional system has a unitive relation and the paper furtherlly analyze their specific performance.The second part, judicial practices of the criminal justice case’s instructional system. Firstly, the paper states the condition of judicial practices and summarizes the criminal justice system’s practice achievements.And the paper furtherlly digs out the problems,for example the number and scale of the criminal cases is too small and it lacks of guiding function; so many justice officers don’t concern about the guiding case or use it to settle cases; the judiciary also lack the ability of utilizing guiding case to settle disputes. Then, the paper analyze the reasons for the status quo of the judicial practice, the criteria include the enactment of the traditional resistance;the standard of similar cases is missing;guiding cases’ s effect are not clear; judicial interpretation’s restiction;the inadequate reasoning of Criminal Justice Instruments and the deficiency of oversight mechanisms.The third part, how to deal with practical issues. First, we need to strengthen the training of judicial officers and expand criminal guiding cases’ s influence. Second, we need to determine the criteria of similar cases. Again, we need to make clear of the guiding effectiveness of criminal cases. Then, we must reduce judicial interpretation and strengthen criminal cases’ s guiding function. Finally, we should establish oversight mechanisms. From such aspects to argument so that we can resolve difficulties that guiding case lacks of insufficient functioning in criminal judicial practice.The fourth part, the construction of criminal justice case’s guiding system under the principle of legality. Thr paper clearly analysize and interpretate the problems that the choosing criteria of guiding criminal cases, the body of creating cases, a selection of programs, and repeal rules.In order to guiding the judicial officers to use criminal justice cases.