Method Of Application Of Leading Case

Since established in 2010,the case guidance system played a role in the judicial practice.But the empirical research shows that the guiding cases in judicial application still exist the following problems:(a)the release quantity is limited and the application of frequency is not high;(b)the judge actively apply guiding cases accounted for than low;(c)in the trial practice,judges tend to be more implicit quoted on leading cases;(d)for guiding case quoted statement has no unified mode,use more chaos.The existence of these problems in the judicial practice,greatly eliminate the uncertainty of leading cases and authority,and may stop to achieve "similar cases with the similar sentence" connection with the pursuit of justice system,let alone to achieve the goal of "unify the application of the law".Appear afore-mentioned problems is the main reason of the lack of effective instructional case applicable method.It is urgent to research the extremely guiding cases applicable methods.The role of the guiding case in the context of current political-judicial arrangement is the core of this system,and applicable method is the basis and premise of guiding cases.Therefore,prior to determine the applicable method,this paper first discusses the law source nature of the guiding cases.To determine whether a certain rules is a source of law to see if in fact it is cited to handle the case for judicial organ,rather than theoretical definition.Therefore,the discussion for the problem will be limited in the theory of sentence in this article.Based on this limitation,we would demonstrate it from the following three aspects.First,whether the guiding cases provide the rule of law for the judge as a standard to judge.When law loophole or conflict,instructional cases provide a solution that can be repeatedly used for designing to supplement.In the case guidance system establishment is preset at the beginning of the instructional cases rules supply function.And this function is by two paths: one is to explain;the second is continued to build.Second,the institutional authority of guiding cases.The law requires people's loyalty and obedience.Any legal system of claim authority.Advocating legality is an essential feature of legal authority.Legitimate authority refers to a legal claim the existence of legal rules which is reason of obedient behavior,and the exclusive reasons for reasons of non-obedient behavior.The SPC has authority for lower courts in the judicial sequence.This authority comes from the arrangement of the national judicial system.It gives the guidance case a mandatory,namely the lower court "shall behave like that".Guiding cases released by the Supreme Court has been given some kind of authority.What's more,the Supreme Court issued "decision on strengthening the legal interpretation work" in1981,it has become a real Chinese legislation of institutional practice by the name of explain the law to try out reality of the legislation.This kind of indirect authorization made by the supreme people's court's judicial explanation for the institutional authority.But essentially as a form of judicial interpretation,guiding cases has the same institutional authority.Third,guiding case is binding.Such as Raz pointed out correctly,legally binding rules should be authoritative command,but not all the authority of the directive are legal,such as rules of behavior within the family,society.Thinking of guiding case law source position also need to examine the legal binding force.Issued by the SPC as the referee rules with institutional authority,guiding cases has the legal binding force.Specification binding is a due binding force,namely the judge "should be" to apply legal source in the judicial referee.Through the three aspects of the argument,it can be determined that guiding cases have the nature of source of law.To make the guiding cases take root,we should strengthen the theoretical study on the level of technical operations,and establish a system of operating rules that harmony with the current law applicable methods.This rule system should include the following parts: first,the principle of guiding cases should be followed and the technology of difference and overthrow;Second,similar case judgment rules;Third,the creation of instructional case contains the code of the referee rules;Last but not least is the reasoning method and road to the guiding cases.When the judge apply "case" to judge the case,follow the previous sentence is a kind of judicial rules.Both two legal system countries,and before the founding of the People's Republic of China,in the use of "case" to judge the case,follow this rule.Guide the current case system in our country is not exceptional also,this is a kind of inevitable choice.Case guidance system which embodies respect for the rule,"shall be referred to" is china's principle of precedent.To play the role of guiding cases in the unified legal application,we also need to draw lessons from the common law's difference technology and the rules of overthrow precedent.So,there is no feasible "difference technology" in the judicial practice,there is no reliable case guidance system.Difference between technical identification mainly includes two aspects: the content of the case facts and the applicable legal rules,but it is more critical than the rule of law to the facts of a crime,which is determined by the characteristics of case law.The key fact determines if the cases are similar or not,and precedent should be applied or not.It is necessary to explore a standard to determine the key facts,to limit preference or prejudice caused by value judgment in the process of judgment.In this paper,with the help of the case that Yi He v.Hopkins to discuss the difference technology."Difference" simply means that refuse to apply,while "overturn" means the change of the guiding case rules was established.From the point of the design of the regulations on the case guidance system,our country's guiding cases overturned a flexible way.The regulations set up two kinds of cases in which there is no longer guiding significance for guiding case: one is that guiding cases conflicts with the new laws,administrative regulations or judicial interpretation;the second is that it replaced by new guiding cases.The rules reserve enough space for the perfection of the instructional cases,also made some restriction for form of legal and subject in toppling instructional cases.When a certain instructional cases do not adapt to social development,it will be overturned.But in the overthrow of guiding cases,the stability and continuity of legal system must be carefully balanced with the reform and perfection of legal system.The technology's object is.So how do you determine the law rules established by the guiding cases? If it is the judge that to find out the law rules from the case,it is likely to see such a situation: one thousand judges discover one thousand kinds of.There is no doubt that this situation will not result in the "accomplice".Therefore,"the referee message" must be cleared.But the judge not just apply law rules established by guiding cases simply.It need to post-mortem arguments about the legal rules,namely judges should demonstrates the rationality of the specific rules determine by the SPC through facts of the guiding case.In terms of guiding cases for legal reasoning,not only need to analogical reasoning,deductive reasoning is needed.These two kinds of reasoning methods in the process of legal reasoning is not separated,two kinds of reasoning methods of analogy and deduces should be melted penetration.A feasible way to solve the problem of melting penetration is the reasonable division of labor between them: the first step in using analogical reasoning is mainly evaluate the case facts,carries on the preliminary evidence;The second step using deductive reasoning rules,verification,and constantly repeated.So will be able to "laws" and "the referee points" in the pending case of reasonable apply,so that the sentence will be more perusable,and more accord with the requirement of justice procedure.The fusion of two law systems is increasingly obvious,both in the civil law countries and common law countries in the pursuit of a variety of legal source.As a kind of source of law,guiding cases rich our country judicial rules,it also adapt of this trend.As long as respecting the rule of justice and reasonable system arrangement,the traditional concept should not be a barrio to perfect case guidance system.Only in the existing legal framework and system design,it would be carried out.Case guiding system is the product with Chinese characteristics which absorbed precedent system reasonably?On the premise of conforms to our country the status quo of the judicial,perfecting the judicial technology and the skill is very necessary.Method of application of guiding cases in essence belongs to the legal application methods,and is a kind of practical reason.When applying guiding cases,the judge should use the legal methods integrally,such as legal discovery,legal reasoning,legal argumentation,legal interpretation and interest balancing.This theory is based on the basis of the existing judicial practice.Mature and efficient applicable method also need to constantly be improved and refined by judges in the judicial practice.