Research On Legal Validity Of The Guiding Cases

The cases guidance system is a judicial system with Chinese characteristics in process of judicial reform.The Supreme Court "provisions on work of the cases guidance" and "rules for the implementation" laid down the issues of "should referring to",which is closely related to legal validity of guiding cases.The research is important because it could improve the theoretical part of the cases guidance system.In addition,it also has practical value.It is helpful for exerting legal validity of the guiding cases injudicial operation.There is a dispute on current legal validity of the guiding cases in academic field.It is mainly manifested in the distinction between "fact binding force" and "legal binding force".Besides,there is an "administrative binding force" point of view.It is necessary to carry out normative analysis from various aspects to reveal current legal validity."Should referring to" imposes compulsory duty on judges and takes independence of judicial discretion into account.Thus,specific binding force have emerged.The description of "fact binding force" has a certain degree of rationality.However,"should referring to" not only embodies the general judicial authority,but also embodies the authority of specific judicial system.From this point of view,the current legal validity of the guiding cases can be described as "institutional binding force" accurately and vividly.The behavior subject are judges.The action object is limited to "judge main points".The concrete requirements include inquiry,reference,quotation,response and explanation.In order to study the judicial operation situation of legal validity of the guiding cases,the author selected 234 judgments in the year 2016 from China Judgments Online.Through empirical study,the author find distribution of courts hierarchy,region,judgments type and the guiding cases are unbalanced.Besides,the rate of reference is low and the situation of response and explanation are undesirable.In a word,the current judicial operating situation is not good.Through refining,induction,combining with other scholars' analysis,the author find there are problems in the guiding cases aspect,institution aspect and judicial judges aspect.Thus,it is necessary to take measures to promote judicial operation situation.First of all,the Supreme Court should improve quality and quantity of the guiding cases.It should emphasize rigorous and adequate demonstration,function of explaining law and filling legal loopholes.Secondly,"should referring to" should be provided legislative support to realize the transformation from institutional binding force to legal binding force.The Supreme Court also should build guarantee mechanism.Thirdly,it is necessary to cultivate reference consciousness of judges and emphasize reasoning.In conclusion,through the analysis and demonstration,empirical investigation,rethink and suggestions,the paper expect to push forward the research on legal validity of the guiding cases.