A Study On The Trial Application Of Civil Guidance Cases

The trial application of civil guidance cases is the core of the implementation of case guidance system,which involves not only the basic theory of guiding cases,but also the specific operational level of technology and methods.The understanding of the nature,effectiveness and function of guiding cases is becoming more and more consistent in theory.However,in judicial practice,there are still many problems restricting the application of guiding cases.Behind this phenomenon is a reflection of the lack of operation of the case guidance system,insufficient supply and so on.This paper first explores the orientation of guiding cases in terms of their nature,effectiveness and function,and then explains the applicable rules of civil law application from the angle of law application,and analyzes the techniques and methods needed by judges to judge "similar cases".After briefly introducing the issue of civil guidance cases and the status quo,take the 24 th guiding case as the cut-in point to carry on the judicial application demonstration research,unifies the present research result to reveal the civil guidance case in the trial application process existence question.Finally,from the system construction and practical operation of the level of protection of China's civil guidance case trial applicable recommendations.There are five parts in this paper,a total of more than 38,000 words.The first part is the introduction.The research background,significance,research status and research methods.The second part analyzes the nature,effectiveness and function of the guiding cases.This paper holds that the case guidance system should belong to an innovative legal application mechanism in nature;The validity has the fact binding force,the function can only be positioned as the guidance,does not apply according to the legal condition and the way should bear the corresponding adverse consequence;Functional performance is the uniform law applicable standard,make up for the careless and loophole of the statutes,improve the trial efficiency,promote the rule of law education,strengthen the referee reasoning and so on.Secondly through the "Regulations" And "The rules" Analysis of relevant provisions,interpretation of guiding cases applicable to the case access rules,applicable procedural rules,applicable liability rules and withdrawal mechanism;through the "basic case" and "the application of the law" these two factors of interpretation and analysis of the judge in the adjudication process to judge similar cases of skills and methods.Finally,brief introduction ofthe publication and application of civil guidance cases.In the 3th part,taking the guiding case No.24 as the analysis sample,the empirical research is carried out from the following aspects: "reference application",quoting the geographical distribution of the court,feedback of the application effect,and the problems existing in the application of the case.To explore the practical situation of the case trial and the problems that exist.Part four is based on empirical analysis and existing research to further summarize the civil guidance cases in the judicial application of the problems.If the application rate is low and the implicit citation tendency is obvious,the effect is not clear,the judicial application is arbitrary and implied,the geographical influence is limited,some judges lack the judgment thinking and necessary skills to apply the guiding cases.Part five puts forward the suggestion of guaranteeing the application of civil guiding case trial.On the operating mechanism,it is suggested to improve the "product quality" of the guiding cases,improve the supply and demand structure of cases,increase the supply of cases,perfect the effectiveness mechanism of guiding cases,implement the case withdrawal mechanism,and establish the hierarchical civil case guidance system.In practice,it is suggested to improve the skills of judge to use cases,to strengthen case teaching,and to implement cases to invoke the "dual-track" operation mode.The innovation of this paper is to point out the concrete path when the judge determines the similarity between the pending case and the guiding case is vague or confused,and puts forward the construction of a hierarchical civil case guidance system.And the implementation of cases to invoke the "two-track system" mode of operation.