Study On The Norms Of Judicial Application In Guiding Cases

The phenomenon of "different judgments to similar cases" as China's long-term the "stubborn" deposit in judicial practice,this difficulty can't be resolved effectively in the tradition of law and deductive reasoning mode.Therefore scholars called for learning foreign precedent system to guide the judge to solve the phenomenon of "different judgments to similar cases".The Supreme People's court will be the first to start the case guidance system,asked the judge in a pending case "shall refer to the" guidance of the similar guidance cases.In judicial practice,although the judge for guiding the judicial case of quoted and achieved certain results,but did not achieve the desired effect system,and the phenomenon of "different judgments to similar cases" still exists in a large amount.The outstanding problems are the low rate of judicial applying,the imbalance of judicial applying,the poor quality of judicial applying and the lower normalization of judicial applying.The reason for the analysis is that the starting procedure of judicial invoking of guiding cases is weak,the similarity judgement standard is unreasonable,the scope of the quoted objects of guiding cases is improper,and the level of effectiveness of applying guiding cases are obviously low.Through investigating the relevant judicial practice of extra territorial case system,we can see that the precedent law has the habit of invoking precedent,and the judge's citing precedents is very deep.The criterion of similarity is mainly based on the facts of the case.The object of applying the case is relatively large,and the level of effectiveness of applying is relatively high.Therefore,under the guidance of value for solving the phenomenon of "different judgments to similar cases",realizing fair trial of the case and improve the level of judgment reasoning,we should cut down the "threshold" of applying the guiding cases,and push the judges to apply the guiding cases actively,so as to achieve the system expectation of the case guidance system.Such as we should improve the judicial starting procedure of applying the guiding case,re-establishing the standard of similarity judgment,expand the scope of applying guiding case and promote judicial effectiveness of applying guiding cases.The article is divided into five parts.The first part is the introduction.It mainly introduces the study background,study significance,study contents,study reviews at home and abroad and research methods.The second part expounds connotation,procedure,standard and scope of the judicial applying of guiding cases in detail,and gives the corresponding demonstration of the effectiveness of the guiding cases,and compares the relationship between the guiding cases and the case law,the judicial interpretation and the written law.The third part introduces the existing legal norms of the of judicial applying of the guiding cases and the useful results and the existing problems that have been made in the practice of judicial applying of guiding cases,and examines the causes of these problems in all directions.The fourth part introduces and summarizes the function and applying of the foreign precedent system from the four dimensions of guiding cases,which includes starting procedure,similarity judgment,applying objects and invoking effectiveness.The fifth part puts forward the perfect recommendations of the applying norms for judicial applying of the guiding cases.It is believed that the operation mechanism of the starting procedure should be perfected firstly,including the determination of the active reference incentive mechanism,the determination of the passive response standards and the establishment of the supervision mechanism of the starting procedure;secondly,the phase similarity criterion should be reestablished,including the exclusionary of criterion of application of law,the construction of multiple similarity judgment standards and the construction of a special case similarity judgment mechanism.Again,the scope of the applied objects should be expanded,including the referees should not be limited to the referee's keynote and only the corresponding number and page number should be marked when the referee is applied.And the effectiveness of judicial applying of guiding cases should be promoted,including the referee's keynote could be the gist of judgment can be a non-individual referee and the rest of the one guiding cases could be justification.Finally,it is necessary to promote the publicity of guiding cases and to improve the ability of judges to applying guiding cases.