The Nature And Binding Force Of Guiding Administrative Cases

In order to respond to the requirements of judicial reform and improve the level of judgement,the guiding case system was formally established in mainland China in 2010.In the following eight years,the guiding case system rules were continuously improved,the number of cases was enriched and the quality of cases was improved.At present,our country refers to the guiding case judgment document increases year by year,and the methods of the judge adopting the case is also constantly optimized.However,due to the fact that the designer of the system has not clearly defined the nature and the binding force of the guiding case,the academic circles have adopted different criteria for that,and the kind of misunderstand lead to some more common problems of the application of the guiding case,affecting the full realization of the value of the system.The courts in mainland China respect the role of statute law,which is the most important judgement basis.At the same time,the courts in China have a hierarchical structure,and the Supreme People's Court has internal administrative functions for the lower courts.This makes the attitude of the Supreme Court to a certain type of cases have an administrative impact on the lower courts.Because of the special nature of administrative judgement,this influence is particularly obvious in the application of guiding administrative cases,which has a substantial impact on the nature and binding force of guiding administrative cases.By referring to the French administrative jurisprudence system,which is most similar to the guiding administrative case system in mainland China,this paper gives a new understanding of the nature and binding force of the guiding administrative case.It holds that the guiding administrative case should be an informal legal source which is carried out by relying on the administrative power of the Supreme People's Court and has universal binding force on people's courts at all levels.It is the foundation of the Supreme People's Court.A manuscript compiled in an administrative trial document.This paper is divided into five parts.The first part is to sort out the basic situation of guiding administrative case system in judicial practice.Firstly,it combs the application problems faced by guiding administrative cases in judicial practice,focusing on the improper way of applying cases by judges and the system omission of applicable rules.On this basis,it points out that the fundamental reason for the application problems is the unclear nature and binding force of guiding administrative cases.The second part introduces the different understandings of scholars on the nature and binding force of guiding administrative cases,and analyses the inappropriateness of these understandings.The third part introduces the origin of French administrative precedent system.Starting from the background and application mode of French administrative precedent system,it distinguishes the nature and binding force of French administrative precedent system,and analyses its similarity with China's guiding administrative case system,so as to prove the understanding of its nature and binding force,and to identify the nature and binding force of guiding administrative case.It can be used for reference,and then prove that it can refer to the application of French administrative jurisprudence in judicial practice.The fourth part elaborates the author's new understanding of the nature and binding force of guiding administrative cases,.And the fifth part elaborales the adoption of this new understanding will play a positive role in guiding the way judges apply in judicial practice and the way the Supreme People's Court issues guiding administrative cases.