The Research On The Effectiveness Orientation Of The Guiding Cases—A Re-argument Of "Judicial Interpretation"

The unbalance of regionally social-economic development of China, judges' judicial ability varies greatly, and the diversity in the local law-enforcement environment, result in a phenomenon that similar cases lead to distinct judgments. In order to maximize the co-same sentence, to uniform standard on the laws' application,and to improve the level of the administration of justice, the Supreme Court initially established “case guidance system ” in 2010. But judicial practice shows that the guiding case binding force is weak and low rated since case guidance system carrying out. And all these difficulties need to be resolved urgently. Inspect the present situation of application of guiding cases, we find out that the key reason of guiding cases for bottleneck is that the effect of positioning guidance is lack of consensus. The effect nature of guiding case hasn't reach an agreement in the academic circle. It appears eight doctrines, and I will explain and make an comment in this article.Doctrine 1: “theory of no binding force”. The case guidance system is just an ordinary judicial system, which standardize the numbers of typical cases selected. It may not be able to deal with a similar case with similar judgment. So it is not suitable for the judicial cost is too high for the case guidance system. guiding cases only has general reference force.Doctrine 2: “theory of fact binding”. Based on the operation of the right of audit supervision and administration of justice, as well as substance of persuasion and supervision of public opinion, the case guidance system almost plays the same role as the judicial interpretation in judicial practice, and has binding force.Doctrine 3: “theory of administrative binding”. Administrative operation and performance system of the court guarantee the application of the guiding cases, which labeled the documents issued by the Supreme Court. Based on this, the guiding cases has administrative binding.Doctrine 4: “theory of quasi-institution binding force”. It means expand the Supreme Court's interpretation of the Law. That the form of legal interpretation includes the guiding cases, mains the Standing Committee of the National People's Congress authorize the guiding cases the legal effect,with a certain norms of restraint force.Doctrine 5: “theory of quasi-legal binding force ”. Although the guiding casesdoes not have the legal effect, it is still not the case with the general bulletin and equal vision, the effect of guiding cases between the formulation and the generality of the bulletin cases, it has a quasi-legal binding force.Doctrine 6: “ theory of quasi-judicial explained ”. While the guiding cases is not a judicial interpretation, but plays a function of judicial interpretation. Both issued subject to the Supreme Court, but the case itself decided it cannot be accept judicial interpretation system, so it is called quasi-judicial interpretation.Doctrine 7:“ theory of legally binding”. Breakthrough the guiding cases don't has legal shackles that grammar and abstract judicial interpretations of the priority of application, the administration of justice be applicable guiding cases, guiding cases is given below the judicial interpretation of the legal effect.I agree with the “ theory of judicial interpretation”. The guiding cases should be a new form of judicial interpretation and have the function of making up the legal loopholes. Judges should have certain Law-making authority and make judicature play an active role in the initiative. The purpose of this paper is to promote the case guidance system step by step. After the incubation period and substantive advance stage, the guiding cases will be the basis of adjudication. Then we will adapt legislation on the basics of the accumulated experience to give full play to the role of uniform law applicable case guidance system,and achieve “same case same judgment”.