Study On Realization Of Cases' “leading” Function

Institution of leading case as a unique judicial system in China,the fundamental purpose of which is to lead judge to unify the application of law by publishing typical cases,then to realize “same case,same judge”.Although in recent years,the supreme court attach great importance to this system,limited by the unclear of basic institution provided,the judge's state of mind to pursuit secure and other factors,its effect is barely satisfactory.One of the most obvious is that in many of the published leading cases,there is still a difficult problem of citation.In other words,this kind validity of "should be referenced" of leading case which exists in the practice level hasn't realized well.This has also become an important reason resulting in restricting the development of the whole institution of leading case.Facing that,different theoretical researchers and judicial practitioners have analyzed from all aspects of theory and practice,but lacking of the reflection on function of leading case should be have.Different with the validity of "should be referenced" and action of "realize same case same judge" leading case show outside,the “leading” function is its inherent efficiency.It theoretically comes from its status of "quasi legal source",and finally services in judicial practice of the "quasi legal source”;On the characteristics,the function of the leading case expresses in three aspects: the authority of the effect,the auxiliary function and the application of law;On the qualities,the function of the leading case is decided by the structure of factors,and is a kind of stable operating mechanism inside the case.The validity of the leading case is only the external effect produced by relating its function with the external environment,the function is basis and premise.Aiming at the “difficult to cite” of leading case,the analysis only limited to the effect of "should be referenced" at the specific application level didn't grasp the nature.Based on the reality of judicial judgment,fully grasping the function of leading case from the guidance of theory to practice,and analyzing the predicament and outlet of realization,become an important way to solve the citation problem.Based on this awareness of problem,we can know that“leading”function of leading case is mainly auxiliary to establish legal source.It can be specifically divided into four aspects: clear law,supplement law,make up loophole and crate rule.The function of clear law is to emphasize the content of legal text or judicial interpretation,and many analysts call it " interpretation of article ".The function of supplement law is to excavate "marginal meaning" of the uncertain legal concept,but it is essentially different from the "judge made law";The function of make up loophole is reflected in the judgment of difficult cases,through the expansion or contraction of the teleology interpretation to provide a unified way;Unlike the three above,the function of create rule of leading case is controversial,the key to understanding this function is to distinguish between the rule of law and the rule of referee.And there are two parts in the rule of referee,one is the legal norms or rules codified,and the other is the judgment standard and judicial law at aspect of thinking.Besides,because published leading cases belong to different department of law,we can't treat them as homogenization.The specific types are "legal explanation","legal interpretation" and "legal creation",corresponding to different functions of leading."Type of legal explanation" mainly clears law," type of legal interpretation" mainly supplements and makes up loopholes of law,and "type of legal creation" mainly crates rules.The most complete functional division is only a theoretical discussion,and the function of leading case must be meaningful in judicial practice.Among them,the most important content are the realization problems of leading function,and the way to solve these problems.Combined with China's judicial system and the current judicial practice,these problems are mainly manifested in following three aspects: First,the judicial tradition of lighting cases and laying on articles.That's result in case is only regarded as the "referee index",and its leading value for the same referee has not been realized.Second,the connection of legislation and guidance is improper.This problem not only makes the leading case can not ease the legislative rigidity,but also makes the judge lack the basis for the exercise of the right of interpretation.Third,pay attention to the referee's results and ignore the referee standards.Aiming at three problem above,we can choose two paths to solve: First of all,refine the subjects,standards and methods of leading case in institution,and try to clear the legal source status of leading case.That can solve the improper connection problem.Secondly,in the course of the operation,excavate deeply the judicial value of cases in our country with the fusion of the two legal systems.And,pay attention to the application of the legal methods,especially the methods of interpretation,in the case judgment,so as to fully guarantee the function of providing referee standards through like publish cases.