The Study On The Application Methods Of Chinese Guiding Cases

Chinese guiding cases interpreting the law in the form of the cases, they attached on the written law, and have no independence. This basic positioning determines the analogy reasoning as methodology basis of the application of Chinese guiding cases, and it must adhere to the basic position of deduction reasoning in statute law. Specific application methods of Chinese guiding cases are the technical guarantee to the realization of the basic value of the unification of legal application, and can be got only by repeatedly training in practice and summarize its experience.Firstly, the paper reviews the historical process of the formation of Chinese guiding cases, and then defined the basic concept, such as "guiding cases","the judicial application of guiding cases ", unified premises of discussion. On this basis, through the comparison of deductive reasoning and analogical reasoning, analyzes the methodology basis of guiding cases. Then analyzes the specific application methods of the guiding cases through the guiding cases that the Supreme People’s court has issued. Finally, summarize the characteristics and significance of the application methods of guiding cases. This paper is divided into six parts:The first part is introduction. The contents of this part include the origin and the present research status of the topic, and the research methods of this paper.The second part is the concept of guiding case and its judicial application. This part mainly defines two basic concepts:"guiding case" and "the judicial application of the guiding cases". Firstly summarizes the meaning of guiding cases. Then, analyzes some misunderstandings of the judicial application of guiding cases, consider that the judicial application of guiding cases is mainly to help understanding the written law.The third part is the methodology foundation of the application of guiding cases. Firstly, analyzes the methodology meaning of legal reasoning, from the view of legal methods, the legal reasoning equals to the deductive reasoning. And then analyzes the methodology meaning of analogical reasoning, consider that analogical reasoning in justice is to provide the premises for legal reasoning. Finally, analyzes the reasoning mechanism of the application of guiding cases, consider that the reasoning mechanism for guiding case is deductive reasoning that based on the analogical reasoning. In the process of Chinese justice, analogical reasoning provides the methodology support for guiding cases to get into another judicial process.The fourth part is the specific application methods of guiding cases. Such as the methods of looking for the guiding cases, the methods of judging case’s similarity, the methods of use the guiding cases, the methods of excluded the application of guiding cases.The fifth part is the characteristics and significance of Chinese guiding cases application methods. Such as posted and non-necessity in choice, interpretative and non-creative in the purpose and composite structures. The application methods of guiding cases are able to improve the judge’s occupation level in China, to constraint the judge’s discretion, and to improve the system of legal methods.The sixth part is the conclusion. This part is a summary to the paper. Emphasis that the application methods of guiding cases are mainly practical skills, and to get the application methods of guiding cases need a large number of practice and experience summary.