Research On The "Reference" Of China Guiding Cases

"The Supreme People's Court on the case guidance work," said:"the Supreme"The Supreme People's Court on the case guidance work," said:"the Supreme People's Court issued guidance cases,people's courts at all levels should refer to similar cases." This paper argues that the guiding case "should be referred to" is not a simple reference to the technical issues of judicial judgment,but a double issue of theory and practice.Because in the judicial practice,in the "reference" effect,reference to the technical problems,but also implied why should refer to the issue of rationality.It can even be said that the rationality of the guiding case "should refer to"is the theoretical starting point of the guiding case "should refer to" all relevant issues.Includes not only the effectiveness of reference,but also how to refer to the problem,including the need to "reference"".Can be said to lack "shall refer to" reasonable answer,should be in the judicial reference is not bad.At the same time,the lack of reference effect,referring to the solution of technical problems,should be referred to it is difficult to enter the judiciary.Therefore,the rationality of "should refer to" is the legal basis of "reference",the effectiveness of reference and the technology of reference is the embodiment of judicial life.The author thinks that the guiding case "shall refer to the rationality," first,because its core is "Co sentenced"."Co contractors" on the basis of equality and stability,law origin,natural law and divine judgment of the ancient judicial support,has been limited as the justification of legal obligation.Secondly,the rationality of the guiding case "should refer to" is still in its own illegal source status,making it can not rise to "should be in accordance with" and only "should refer to".Finally,the guiding case as a judicial precedent,it is typical,stability,accuracy more than the general judicial precedent,the only guiding case "shall refer to",which reflects "a compromise co contractors" judicial duties.At the same time,we should refer to the guiding case,which emphasizes the integrity of a judicial profession,more reasonable and flexible than the implementation of case law.In today's practice,judicial efficiency can be improved and judicial resources will be saved.The author thinks that the rationality of "reference should be referenced"determines its corresponding effect.Its effectiveness is not a legal binding force,but a limited rigid binding force,which only acts in the field of justice and judges.At the same time,the author also puts forward some principles and methods of guiding cases.