Research On Judicial Application Of Guiding Cases In China

With the rapid development of China's economy,social relations are becoming increasingly diverse and complex.The types of cases accepted by the courts also tend to be difficult,complex and diversified,this change also urgently needs timely,effective and unified judicial guidance when the court hears cases.At the same time,because of the great differences in customs and habits and the uneven level of economic development in different parts of China,judges also have different judicial abilities.In addition,the interference of local protectionism and different ways of using judicial discretion.The vagueness of legal language also brings difficulties to the uniform application of law.Therefore,Judicial Trial in China will encounter some problems that are difficult to solve by law.With this background,the Supreme People's Court formally included the case guidance system in the outline of judicial reform in 2005.On November 15,2010,the Supreme People's Court passed the Provisions on Case Guidance,which marks the preliminary establishment of the case guidance system with Chinese characteristics,The promulgation of this regulation also marks the formal implementation of the case guidance system in China.However,the text of this provision actually contains only ten articles,and the operation of the case guidance system is only a guide of principle and generalization,without providing specific applicable technology and operation mechanism.This loophole also makes the guiding cases lack specific basis in the aspects of creation,selection,application and discretion,So it leaves a lot of room for academic research.According to the survey data,the implementation of the guiding case system in China is still not satisfactory.Compared with the heated discussion on the development prospects of the guiding case system in the theoretical circles,the guiding case system has been ignored in practice.The main reasons for the dilemma of guiding cases are two aspects: on the one hand,the system defects of the Regulations themselves,and on the other hand,the lack of skilled and popular technology in the operation of judicial practice.In view of the problems existing in the current guiding case system in China,this paper first uses historical research methods to illustrate that there is natural soil in guiding case system in China,which is not a complete "imported product".Combining data analysis and literature research methods to understand the currentsituation of guiding case system in China.After a detailed analysis of the nature and problems of guiding cases in China,it is not enough to clarify the ten principles to guide judges to judge similar cases in specific practice,and the key point of the applicable technology of case guidance system is to issue specific reference criteria.This paper also elaborates on the applicable methods of guiding cases in judicial practice by combining the research methods of field visits to the courts,so as to put forward some suggestions on the judicial application of guiding cases in China.Guiding case system is valued in China.It not only represents the birth of a new system,but also means a change of legal thinking mode and judicial judgment mode.Judges in dealing with difficult and complex cases how to use legal fairness and impartiality to make judgments,the guiding role of cases will play an increasingly important role.The guiding case system can be regarded as a method of application of law.Its function is how to apply the law in the vague area of legal language.Using vivid cases to explain,this form is more conducive to the judge's understanding and re-use of the law.