On The Application Of Law In The Supreme People's Court

For a long time,from the point of view of judicial practice,our country needs a guiding case rule to solve a series of practical problems,such as the ambiguity of legal language,the inevitable existence of legal loopholes,"the same case of different judgments" phenomenon leading to judicial injustice and social call for judicial reunification.Based on this legal basis and realistic background,and also in order to overcome the development of the lack of written law,unify the legal rules,enhance judicial efficiency and to impose the necessary restrictions on the discretion of judges,the Supreme People's Court promulgated the “Provisions on the Work of Case Guidance”(hereinafter referred to as the "Provisions")and its implementing rules,which also marks the guiding case system in China has been from the ideal to the reality.But the current guiding case of our country are not mature,and its performance is that the effectiveness of positioning is not yet clear.Although the "Provisions" and its implementing rules provide for the effectiveness of a "reference" guidance case,the academic and judicial practice haven't formed a unified understanding due to the unclear meaning of "reference";Local standards of operation vary,and the courts and judges at all levels have great arbitrariness in the application;Combined with the tradition of statute law,the judges generally lack the applicable technology and thinking of the guiding case,which make the role of the guiding case did not really play out.Clarifying the relationship between the guiding case and judge discretion;giving full play to the role of the guiding case in uniform application of the law and give it the legal effect;making the unified mandatory norms of the guiding case;breaking the rigid thinking of applicable legal norms,all of these can make the guiding case really play its role in judicial practice and guide the case system to a more perfect,scientific,reasonable and better future.