Research On Case Instruction System In China

Case guidance system is an important content of China’s judicial reform,covering public security, procuratorate, Court, three systems. Public security and procuratorate system due to its own subordinate leadership in implementing case guidance system encountered relatively less resistance and controversies. The court system is a superior-subordinate relationship as supervision and being supervised, and judicial reform mentioned the need to further remove administrative court, gave the court authority independent of the trial, which involves the judge’s discretion, justice and judicial court the division of authority and many other issues, including on the implementation of case guidance system has also raised a lot of controversy and discussion. Therefore, this article mainly focused on the case guidance system, field of trial court, to study of "what- why- how " way of thinking, to expand on the case guidance system of learning and research.This paper consists of three main parts.The first part of the study is about the question of what is the case guidance system.First locate relevant content and concepts clear case guidance system, the analysis of case guidance system, to identify cases, case, case guidance system, and then grasp the concept of case guidance system. The case guidance system is located in the compromise choice of the civil law and conforms to the trend toward integration of the common law, is a combination of our judicial system, while maintaining the statutes of the legal system, from Western case law system, an innovative system of legal norms applicable to judicial activities. Choose this system lies in the value and function of cases guiding system, which compensate for the uncertainty of the statutory language, provide handling for new, significant and difficult cases, achieving justice that restrict free discretion.Second part is mainly about the current case guidance system problems and controversies. There is a dispute over the creation body and guiding case selectioncriteria is also less clear, which are lie in the aspect of system creation. There are three viewpoints, jurisprudence theory, the fact binding theory and judicial interpretation theory, which are the main dispute over the effectiveness of the guiding case jurisprudence. There are also some questions about how to choose the existence of similar cases and how to refer to the selected application of guiding cases.The third part is based upon the second part of this paper to propose controversial personal views about the creation of case guidance system, the effectiveness of guiding cases, the application of guiding case and learn from the extraterritorial jurisprudence system. At the same time, make some specific comments and proposal, hoping to provide a little help for improving the case guidance system.