The Study Of Problems In Judicial Application Of Guiding Cases

With the development of the legal construction in our country and the further promotion of the case guidance system,the application of guidance case in judicial practice has attracted the attention of theorists and practitioners.At present,there are many researches on guidance cases in academic circles.But more and more scholars found that the guidance case has a series of problems in the process of judicial practice,our case guidance system has not achieved satisfactory results,the embarrassing situation of the different co-contracting still exist.From the unique perspective,This paper take the No.8 guiding case as the research object,starting from the basic contents,seeking legal and academic foundation,combined with the academic evaluation of the No.8 guiding case,in order to make an accurate positioning of the No.8 guiding case:the No.8 guiding case provide the criteria clearly on the serious difficulties in the management:"Whether the management to determine the company’s serious difficulties arise,it should be from the company’s shareholders and the board of directors or executive directors and the board of supervisors or supervisor operation status were analyzed,the company is in the profit situation is not the necessary conditions to estimate the serious difficulties occurring in company management." It provides a criterion for the trial of similar cases in judicial practice,Therefore,judges in the judicial practice encountered similar cases should refer to the No.8 guiding case to make a fair decision.Based on the analysis of the judicial application of the No.8 guiding case,it found that the application of guiding cases in judicial practice can be summarized as standard reference type,nonstandard reference type,reject reference type,avoidance reference type these four cases,and then found the No.8 guiding case exist the following problems in the judicial process:The overall application rate is low,reference to the guidance case is not standardized,the case quoted by the parties and the judge did not respond to the phenomenon is more common,the case of the judge’s implicit reference guidance is serious,the reference situation of different trial levels to the guiding cases is different partly.The problem has its profound reasons,such as the concept of level,the long-standing fixed statute law thinking in the trial case tend to"deductive reasoning from the general to the special",rather than "from special to special" analogy reasoning mode;At the technical level where it is currently in China is the lack of unified guiding case applicable methods,makes the judge in the face of pending cases do not know how to apply the guidance case to the referee,but this reason is the leading cause of the present situation that the application of guiding cases is less than expected.At the system level,it shows that there is a lack of the corresponding supporting system,such as the application of the guidance system for the case of the judge,as well as the application of the guidance system.This paper is based on the empirical research of the No.8 guiding case and takes the application of precedent in American case law system as source,referring to the understanding of the applicable technology of our country,to make a conclusion:In the process of trying to judge the case,and when facing how to apply the guiding case,The judge should start from the case itself,to find out the legal issues and the key facts,using the method of analogical reasoning to compare between the legal issues of the case and the facts.If the two are similar and there is no case to exclude the factors,and then adhere to the principle of comprehensive analysis of the situation of the balance,so as to be applied to guide the case,otherwise,it is applicable to the guidance case.Of course,if we want to give full play to the function of guiding cases,we also need the joint efforts of judges,judicial system,society and so on.