On Chinese Case Guidance System:in A Comparative Perspective

The system of case guidance with Chinese characteristics was established in 2010 which means a lot to Chinese legal system. This system have changed the structure of Chinese judicial system quietly during the last five years and made a great contribution to the construction of rule of law in China. However, there are some judicial dilemmas which need to be solved urgently along with the operation of the system, such as the orientation, relationships with judicial interpretation and the application of the guiding cases under the system are difficult, urgent but cannot be well solved problems in the short term. This paper explains these issues in the perspective of comparative law and the structure of discovering problems, parsing problems and solving problems. This paper also comes up with some operable suggestions to promote the development of the case guidance system.The paper take the example of the research report of the senior People’s Court of Hubei province in the beginning, trying to show the following situation intuitively in the form of data and charts from the perspective of positive investigation, namely that the operation of the case guidance system, the cognition of various groups, such as judges, lawyers and parties and make a generalization of the operation of the system. Then the paper generalizes three judicial dilemmas based on the analysis of the operation of the system. Then makes an explain of the precedent system of the civil law system and common law system from the perspective of comparative law on the basis of the problems. In order to analyze the different connotations and the role of the legal precedent in the two genealogies of law, the paper makes compares about the logic basis, binding force, juridical status, appropriate technology, role and the judge’s initiative. What followed is a detailed introduction of the three big safeguard mechanisms of the judicial precedent system in Germany, namely that introduction mechanism, report system when there is a departure from the precedents and the case open mechanism. Then describes the big three judicial dilemmas and comes up with the suggestions in the end. Guiding cases should have factual binding force and case guidance system should be an independent system rather than part of judicial interpretation system. China can make a reference to the safeguard mechanism of the precedent system in Germany and establish similar system which based on our national conditions. The system in China should be an organism which contains database of the guiding cases, the discovering system of the guiding system, quotation mechanism and report system when there is a departure.