A Study On The Guidance System Of Criminal Cases

In China,the law and judicial interpretations can be used as the basis for the trail of the case.Expect that,the guiding case is a great innovation in explaining and applying the law and summing up the trail experience for China's supreme judicial organ in recent years.Born as a new system,with its own connotation and function,the guidance system of criminal cases has experienced a complex evolution process.Because it lacks clear legal provisions which defines its nature position,academic perspectives on this question also were at sixes and sevens.Based on sufficient theoretical research and the analysis on different views' merit and demerit,the nature of criminal guiding cases is similar judicial interpretation,and it has two functions of guidance system of criminal cases:function on the explication of constitutive elements of conviction and function on constraining force of measurement penalty.A legal system must have its basis,and the legal basis of case guidance system is Decision on Strengthening the Legal Interpretation Work and Organic Law of People's Court of the People's Republic of China,The theory basis of the system concludes two aspects.The first aspect is China's legislative system.In our country,judicial organ has the power to formulate judicial interpretations,of course it can formulate guiding cases which is similar to judicial interpretations.The second aspect is certainty of criminal justice.The essential use of criminal guiding cases is uniform criminal law applicable standards,and this system is benefit to realize the aim of certainty of criminal justice.Expect that,the promotion of judicial fair and the unification of law-applying is practical basis of this system.But at the very beginning of a new-born legal system,there will always exists all kinds of problems:not very sufficient legal basis,the shortage of legal status,and the limited constraining force.Firstly,the power that the supreme judicial organ could formulate guiding cases lacks legal basis,and so does the constraining force of guiding cases.Secondly,guiding cases lack guiding function.At last,there are not concrete legal provisions of citing guiding cases and ensuring approaches.If we want to solve these problems,we ought to explicit the system's^legal basis and constraining force.Firstly,we should affirm the system's legal basis via substantive law and procedural law.Secondly,we should enhance the judicial application of supporting measures in order that this system could play a better role injudicial reform.