The Analysis Of Legal Renewal In Guiding Cases

The<Provisions of the Supreme People's Court on the Work of Case Guidance System>,which promulgated on November 26,2010,marks the preliminary establishment of China's case guidance system.Since the establishment of the case guidance system,the Supreme People's Court has issued 21 batches of 112 guiding cases.However,the effect of these cases in judicial practice is not as well as expected.It should be recognized that in the case of both written legislation and judicial interpretation have existed,no matter what type of guiding cases,the key to their guiding significance is to take the creation of new legal rules as the center of them.Legal renewal is a creative judicial act based on the written legislation and judicial interpretation when the judicature can't find the directly formulating rules or abstract rules.Its purpose is to make up for legislative vacancies and create legal rules that apply to a specific case,which can achieve fairness and justice.This happens to coincide with the functional positioning of guiding cases.This paper introduces the basic theory of legal renewal and makes a detailed and comprehensive analysis of the guiding cases have been issued in China.To further explore the significance,ways and characteristics of the application of legal renewal in guiding cases.On this basis and combined with China's judicial practice,this paper proposes some specific improvement ways to improve the effect of legal renewal in the guiding cases.The first part introduces the basic theory of legal renewal and analyzes the significance of legal renewal for guiding cases.Legal renewal is not recognized by legislation but actually exists in judicial practice.In order to regulate it,there must be the double restriction of basic principle and specific method.Legal renewal is one of the key factors to meet the functional positioning of the guiding case.At the same time,it is of great significance to the guiding case.For example,it can ensure the quality of the selection of guiding cases,promote guiding cases effectively create legal rules and encourage judges to actively apply guiding cases.The second part is a detailed analysis of the application methods and characteristics of legal renewal in guiding cases.There are differences in the methods and extent of legal renewal in the guiding case for different departmental laws.The legal renewal of criminal guiding cases is the lowest.The extent and frequency of civil guiding cases are the highest,while administrative guiding cases are in the middle.In general,all departmental law guiding cases pay more attention to the guiding role of legal purposes in legal renewal.From the characteristics of specific methods,guiding cases can flexibly use analogies to create,refine and expand legal rules.At the same time,the official text of the guiding cases attaches great importance to the explanation and reasoning of the reasons for legal renewal,which is worthy of being used for reference by judges at all levels when they write the judgment documents.The third part is about the way to improve the effect of legal renewal in guiding cases.First of all,from the perspective of improving the overall referral rate of guiding cases,we should select the guiding case based on the needs of the judiciary.The Supreme People's Court should pay special attention to selecting cases that can meet the needs of judicial practice as guiding cases.Guiding case No.24 is a typical example.Secondly,the case of full legal renewal should be carefully selected.Tilting the number of cases with sufficient legal renewal.Fully respect the practical experience and wisdom of judges in the legal renewal.Thirdly,the reasons for legal renewal should be demonstrated and explained in more details,so as to improve the acceptability of the judgment documents and provide more direct help for the later applicants.Fourthly,we should pay attention to the arguments and reasons about the legal renewal of the parties involved in the proceedings,so as to provide more help for the improvement of the legal renewal and achieve the effect of listening to both sides.Finally,existing regulations should be refined to regulate the application of the legal renewal conclusion.As for the conclusion of legal renewal,we should not only avoid the situation that should be referred to but not referred to,but also avoid the wrong application.The fourth part is the conclusion of this paper.In general,legal renewal exists in guiding cases and plays an important role in the function of creating and expanding rules.We should pay more attention to it and improve the practical effect of the legal renewal conclusion so as to better realize the function of guiding cases.