Research On The Applicability Of Directive Cases

China is a country with statute law which judges use most to decide cases.Written law in our country is the most persuasive and authoritative. However, because of the abstractness and the strict lawmaking procedure, there have been many problems in judicial practice, such as : “the disunity between application of law and referee scale”, “judicial inefficiency” and “legislative lag”. China is a big country and the development level is different among the provinces, so it’s difficult to unify the application of law. Along with the social development and the progress of science and technology, the emergence of many new cases shows the more and more obvious defects of statute law. For concern over the issues in judicial practice, the case guidance system was established in 2010 and the Supreme People’s Court and the Supreme People’s Procuratorate has published directing cases to unify law application and to solve those problems such as legislative lag and different sentences for same cases.The Supreme People’s Court is always the case release subject and it has released 11 times which means 56 directing cases since the first one released in 2011.The selection procedures of directing cases are becoming more and more mature, but theses cases are not applied very satisfactory in judicial practice. There isn’t a united form to apply directing cases and they are not applied by judges very positively,therefor, the judges haven’t understood theses cases thoroughly. These problems exist and are hard to solve. The Supreme Court emphasized on the selection of directingcases instead of the application. In “Provisions on the work of case guidance”implementation details issued in 2015, there are no united rules on application ways but just only explanations on quoted forms. As a result, the research on the application ways and united quoted forms of directing cases become topics which arouse general concern.As a statute law country, judges have skillfully used the law and judicial explanation in a long-term judicial practice. And it is a big challenge for them to be familiar with the application of directing cases. Judges are not used to looking for evidence and reasons from cases and they can’t apply cases skillfully either since we have no case law tradition. So the generalization of directing cases applying can’t rely on feedback from grassroots courts to the top, on the contrary, it need to depend on the promotion from Supreme Court to the bottom. These directing cases in our country are a combination of the induction by basic courts and the revision by the Supreme People’s Court. Directing cases are both the beginning of induction and the ending of deduction. Therefor, the constraints of directing cases come from authority of the Supreme People’s Court and the persuasive power of these cases themselves.Upon the current situation, the big problems we face now is how to look for cases, how to judge cases which are alike, how to quote cases, how to and which part to rely on cases, and how to reflect cases in the written judgment. One of the difficulties in promoting case guidance system is that judicial personnel lacks the knowledge about case guidance and cannot reach a consensus. It is important to study the applicable methods of directive cases. The experiences of countries from the two law systems can be helpful references. Current applicable methods of directive cases are inheritance of traditional judicial ways, and do not represent the essence of case guidance system.To solve these problems, we not only need to study experience of other countries but also need our judges’ pioneering spirit; we need to study not only judicial skills of other countries but also judicial spirit reflected from case law system. When we refer to directing cases in judicial practice, the ideology of judges and analysis logic reflected from directing cases are more important than the explanations of law madefor us to consult. Only by this way can we reach the original purpose of setting up directing case system and can we develop directing case system with our country characteristic.Based on the specific application of directing cases, this article studies directing cases and the written judgments which used those cases, finds out why it’s difficult to apply directing cases and the analyzes the reasons. On this basis, this article puts forward the ways of applying directing cases and due security system with the hope to contribute to the development of directing case system in our country.