Research On Judicial Precedent Mechanism

When exploring the legal system of common law countries,we are often amazed at its complete evidence law system and fine and structured rule of evidence.Examining the present evidence law situation in China,although any person who engages in law research and judicial practice will emphasize that “the litigation is to play evidence”,we also soberly find that,the research on evidence law in china has a great gap.In order to solve this problem,this paper conducts the research from the perspective of judicial jurisprudence combing with theoretical and practical problems,this paper begins with three issues,that are: How the judicial precedent is generated.How the judicial precedent is feed-backed in judicial practice.How the judicial precedent affects the law of evidence.In order to answer the above three questions,this paper carries out a lot of historical research and comparative study,as well as introduces an empirical research.The development of case law system of Common Law provides a great impetus to the development of law of evidence around the world.The civil law system which is in the law integration also generally begins to increase the suicidal factors in litigation,and also increasingly begins to focus on the role of judicial jurisprudence from the perspective of judicial practice,and no longer takes the judicial jurisprudence as the material of legal theory research.The paper also carries out the following research.Reference to continental civil law countries like Germany and France,who have introduced the Judicial Precedent System for dozens or even hundreds of years,whether it is suitable to introduce the Judicial Precedent System in China's judicial environment,and what impact will it bring to our evidence law system? Through the study of judicial jurisprudence and its mechanisms,we will conduct a preliminary judgment on the above issues.By drawing on the development ideas of civil law,China has began to trial run the “Chinese-style judicial precedent system”-guidance case system.Thus,does this system that similar to judicial case have the potential for further development? In order to get the exact conclusion,it needs to start research and discussion from the judicial case mechanism,needs to explore the feasibility from the generated origin of the judicial case system.Through a series of analyzes,we found that,judicial jurisprudence has a lot of effect on judicial practice,which can be summed up in two respects-the one belongs to evidentialism,another belongs to proof theory.The generation of systematic evidence law from the perspective of evidence is not a direct effect of judicial jurisprudence.However,from the perspective of proof theory,the judicial jurisprudence can be from the point of view of criminal procedure abstract guidance,and ultimately forms a specific guideline and even a system.The Judicial Precedent System in China's legal system is not yet mature and complete,which needs to be improved in a lot of ways.This system requires the use of judicial jurisprudence,and focuses on the abstract spirit refining on the basis of enhancing the form.In general,it is a process starts from scratch,and then to fine,it is a process from abstract to concrete,from obscure to inevitable.