A Study On The Judicial Application Of Guiding Cases

Case guidance system has its specific procedure and standard to set up guiding cases to offer guidance to similar cases within a specific territory to promote the common sense of judicial consolidation,fair and efficiency.It was specially designed for Chinese society with the goal of the pursuing equity and justice,used by the People's Court to restrict the use of law,making supportive laws and to ensure the function of discretion.Based on practice with requiring justice of the society,case guidance system cooperated with the developing trend of written law.The most significant effects of case guidance system are normalizing the discretion of judges and improving the correction and efficiency of the judging procedure.Guiding case is a significant part of the case guidance system.The guiding case in this paper refers to the guiding cases published by The Supreme People's Court,based on the relationship with the written law,Chinese guiding cases have three types: underline,explanation and support,every guiding case contains the sequence of caption,key words,key judging points,relative proposed laws,backgrounds,results and reasons.Each and every factor has its own specialty and function.As a country with traditional written law,although there is no legal enforcement for guiding cases,it has an actual restriction on practice,i.e.,while the current case share some similarities with guiding cases,the judge should refer to the guiding cases.Judge should presenting sufficient reason if only it would not follow the rule.As guiding cases are getting regulated,the effects on the judgments are turning better,The case guidance system has been operating for seven years so far.Therefore,researches should focus on its operation status.The research in this paper is focus on the specimen of 118 Civil and Commercial Cases,aiming at to improve the system with practical suggestions.The view in this paper is divided into macro and micro.Macro view refers to the applying area,cited quantity and type to find out the imbalance between different areas and the difference between the expected and actual function of some guiding cases.Micro view focuses on the subject,pattern and judging results of guiding cases to discover the lack of restrictions and the low citing ratio.Thus,I suggested following measures:1.Improving current vision for guiding cases2.Making specific instructions for the application of guiding cases3.Evaluating operation status for published guiding cases in time4.Refining abolish and modify rules for guiding cases5.Establishing a corresponding systemA system needs to correct itself with experiences from practice to keep active.According to the analysis of cases,this paper focus on the operation status of guiding cases to offer a practical research direction for further studies and making an effort in the development of Chinese Case Guidance System.