| In the history of the construction of the rule of law in China,the year of 2010 should belong to one year which has the significance and the commemoration value.On the one hand,it has been announced that the legal system was finished,which means our country is changing from the state of "There Must be Laws to Abide by" to the trend of "the Laws Must be Observed and Strictly Enforced,and Lawbreakers Must be Prosecuted";on the other hand,Supreme People's court and the Supreme People's Procuratorate and the Ministry of public security has issued Regulations on the System of Directive Cases that belong to the respective field.The selection range,released carrier and application form of directive cases are to be promulgated and regulated by an official document.Thus it is proved that the System of Directive Cases should become another branch of the important force which will change the current legal structure.From the angle of the system of the law,the System of Directive Cases which was executed will form a new kind of judicial rule mechanism in order to substantiating and enrich legal system of our country.Specifically,our current legal system mainly includes the narrow sense of the laws which the National People's Congress and its Standing Committee creates,the general laws(regulations)which the State Council formulated,the narrow sense of the rules of justice which the Supreme People's court created.The judicial rules only included judicial interpretation before the System of Directive Cases,and now it also included referee rules in the guiding case.It should be for the System of Directive Cases to follow inherent judicial tradition,realize judicial justice and accurately apply the law.Besides,it also conform to the trend of the integration of the two law systems,make up for the lack of legal policy and cope with the reality that the judges do not have a high level.To November 26,2015,the Supreme People's court has issued a 11 batch of guiding cases,including a total of 56 guiding cases.However,all kinds of problems are gradually produced with the establishment of the System of Directive Cases and the increase of the number of guiding cases.For example,how to correctly understand the legal status of the System of Directive Cases,how to accurately locate the value and the function of the System of Directive Cases and define the guiding role of the guiding case and so on,whose problems that need to be solved.Obviously,discussion on the System of Directive Cases cannot be confined on the theoretical level.And the research should be focused on how to further play a role of the System of Directive Cases in practice.In fact,before the establishment of the System of Directive Cases,there has been a relevant theoretical research and the results are worth learning from.Among them,Among them,Hu Yunteng when he was Secretary of the Supreme People's court and Yu Tongzhi when he was a judge of the Beijing Municipal Higher People's Court,jointly published a paper.Such as the value of the System of Directive Cases,the difference between the System of Directive Cases and the Case Law and legal position of the System of Directive Cases,whose problems have been analyzed.After careful study,I find the current System of Directive Cases was basically established by this paper.In addition,Chen Xingliang,Wang Liming,Zhou Guangquan and other famous scholars also conducted a special study of the System of Directive Cases.On the basis of these research results,this paper choose the analysis angle of the value of the System of Directive Cases to discuss on the paths of how the System of Directive Cases play an important role,so that produce a reference value and play a reference role.This paper is divided into four parts,The first part is to explore the System of Directive Cases from the theoretical level,including legitimacy analysis,normative analysis and comparative analysis of the System of Directive Cases.In the legitimacy analysis of the System of Directive Cases,the focus of the study includes the establishment basis,source analysis and philosophical basis.In the normative analysis of the System of Directive Cases,the main points that we will discuss includes selection process,system structure and application way.In the comparative analysis of the System of Directive Cases,the focus of analysis includes the comparison with the legal precedent system of western countries and the relationship with the Chinese ancient laws.The second part is mainly about the value of the System of Directive Cases.As we all know,the value of the System of Directive Cases has always been a big difference in the legal theory and judicial practice.In this paper,the first and most important value of the System of Directive Cases is to create rules.In order to be able to analyze the argument in place,this part is mainly divided into the discussion about natural law concept,the value of the System of Directive Cases and the case analysis of the value of the System of Directive Cases.The third part is to go on a detailed and comprehensive analysis of the factors which restrict the further realization of the value of the System of Directive Cases,and this part is the key part of the text to be described in this paper.As if trying to solve the problems existing in the current System of Directive Cases,we must be able to find the existence of the real problem.Specifically,this part includes the present situation which the guiding cases was cited,the court lack of the habit of citing the guiding cases,trial supervision obligation can not be achieved,have yet to establish a sound case security mechanism and lack of legal professional community.The fourth part is the most critical part,that is,to put forward improvement measures which realize the value of the System of Directive Cases.Whether it is prepared on the basis of the first part,or explore the value of the second part,or problems in the analysis of the third part,the final target point is to further realize the value of the System of Directive Cases.Introduce the technical mechanism of the court quoting the guiding cases,gradually realize the judicial supervision mechanism,establish a sound case guarantee mechanism and construct the interaction mechanism among legal professional community(judges,prosecutors,lawyers)and so on,which suggestions can solve the problem of the third part. |
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