On The Improvement Of China's Case Guidance System

The phenomenon of "co-vary sentence" has long existed in China's judicial practices, which has affected the Chinese judicial unification. For the purpose of solving this persisting issue, China has innovatively proposed the concept of establishing a case guidance system with reference to foreign precedent systems and in combination with the Chinese national conditions and judicial practical experience. Upon tens of years of exploration and research, the Supreme People's Court promulgated the Regulations on Case Guidance Work (hereinafter referred to as the Regulations) in November 2010, which embodied the initial establishment of China's case guidance system. However, the Regulations have enjoyed limited influence since their promulgation and implementation for two reasons. For one thing, the Regulations only contain principle regulations on the case guidance system not involving nature, functional positioning and other basic contents of the case guidance system, and no detailed rules are promulgated to expressly provide for specific rules and supporting measures in the implementation process. For another, the connection problem developed over time in China with respect to the judicial rules, the operating mode and the case guidance system is not taken into full account. The above two aspects of factors will inevitably influence the effect of the case guidance system in application. In the thesis writing process, the author comprehensively utilizes such research methods as value analysis method, history analysis method, comparative analysis method and case analysis method to discuss, in an all-around manner, the origin, concept, nature, functional positioning, deficiency and specific improvement measures, etc. of the case guidance system.Firstly, this thesis clearly defines the concept of case guidance system, i.e. the case system is a system with guidance significance for future judicial work of courts at all levels through which representative cases which have taken effect in courts at all levels are selected as per certain standards, submitted one level after another to the judicial committee of the Supreme People's Court as per certain procedures and announced to the public through authoritative media upon review. Secondly, this thesis clarifies on nature and functional positioning of the case guidance system, i.e. the case guidance system is an innovative law application system in nature rather than a law creation mechanism. By making comparison with other relevant legal regulations and documents as well as operating systems, it is held that the functional positioning of the case guidance system as "quasi-judicial interpretations" is relatively appropriate. In other words, it has legal effect so that it shall be referred to, but in terms of application effect, it does not equal to juridical interpretations but rather shall serve as supplement to judicial interpretations. Thirdly, this thesis analyzes the operating bottleneck of the case guidance system at the current stage from the perspectives of intrinsic reasons and external environment, including unclear standards for the distinction of "similar cases", lack of a renewal and exit mechanism of guiding cases, etc. Additionally, the relationships between the case guidance system and judicial interpretations, judge's discretionary power and other judicial rules and operating modes have not been appropriately coordinated. It serves as bedding for the improvement of the case guidance system hereinafter. Lastly, advice and suggestions on improvement of the case guidance system are offered by proposing relevant measures for improving specific rules, e.g. specifying definite standards of "similar cases" and coordinating the relationships between the case guidance system and judicial interpretations and judge's discretionary power.