| On November 26,2010,the supreme people's court issued the "regulations on the guidance of cases",which marked the formal establishment of China's guiding case system.To this day,the case guidance system has become a hot topic in the field of legal theory and judicial practice.So far,92 guiding cases have been issued in China,but there are still some problems in guiding cases in the application process.In this paper,starting from the nature of guiding cases,indicates the guiding case is different from our country's judicial interpretation in China and the western case,the final will be located in the referee rules guiding cases in China.After clarifying the nature of guiding cases in China,the application mechanism and the application effect of guiding cases have also caused a series of problems.Although China's supreme people's court for guiding case introduced relevant policies,but for the effectiveness of the instructional cases and the application of the specific mechanism is still not perfect,plus instructional cases run enough external legal environment optimization,judicial case-hearing level system does not match with that for guiding case,guiding case applicable supporting measures is not sound.To solve these problems,this paper draws on the test run some countries outside of our experience,including common law countries case law in Britain and the United States,the civil law countries of Germany and France precedent system,then combined with the actual situation of our country,put forward the method to solve the problem of instructional case applicable.Clear applicable effectiveness of guiding cases,standardize the mechanism of action of guiding cases,reform and the guiding case applicable case-hearing level system,establish guidance case applicable supporting mechanism,such as perfecting the system of case conversion mechanism and the objection to appeal,the case from filing system and training system of education and other supporting measures of guiding cases. |
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