Discussion On The Acceptability Of Guiding Cases From The Perspective Of Rhetoric Theory

The acceptability of guiding cases is a necessary condition for the Supreme People's Court and the People's Courts at all levels to reach a "minimum consensus".However,the guiding cases have been met with controversy in the theoretical field and cold reception in the practical field for more than eight years,and most of the guiding cases have not been cited,or have been cited at a very low rate.Therefore,it is necessary to take steps to improve the acceptability of guiding cases.Rhetoric,as an important part of the reform of the interpretation and to improve the acceptability of judicial instruments,has its own rationality and legitimacy in improving the acceptability of guiding cases.However,rhetoric,as a persuasion tool with personalized characteristics,needs to be adjusted in the face of different types of functional guidance cases to play a better role.At present,such function faces obstacles.There is a tendency of homogenization in the processing of guiding cases'function in theoretical and practical filed,which is quite contrary to the fact that the guiding cases have shown differentiation obviously in functions at present.Such dilemma makes it difficult to carry out the work of improving the acceptability of guiding cases through rhetoric.To break through,it is necessary to make a typological analysis.This analysis must be guided by the function that the guiding case wants to achieve.As of December 31,2018,the civil guiding cases issued by the Supreme People's Court could be divided into type of finding law,rectifying law and supplementing law and these three should be different in the use of rhetoric.Through the application of ethos,logos and pathos described by Michel Meyer to rhetoric,guiding cases may gain the authority.And according to types,guiding cases shall show the logic distinctively,and finally to make the courts to be convinced,so as to improve the acceptability of guiding cases.