Research On The Formation And Application Ofguiding Cases In China

As a traditional country with statute law,the law will also be too general or lagging behind the development of social reality.Most of the judicial interpretations issued by the Supreme People's Court still have problems such as insufficient specificity and poor operability.In addition,the influence of judges' subjective initiative is In the process of interpreting the law,different interpretation conclusions may be generated due to differences in specific case facts,objective environmental backgrounds,and individual cognitive levels.Therefore,the improvement of the case guidance system is to make up for the existing rough and inadequate laws.At present,there are still some gaps in the theoretical content of the case guidance system,and the expression is vague.In practice,the people's courts at different levels have different practices,and the overall referral rate of the guiding cases is low.Looking at the existing research results in China,the academic community will focus on the judgment of similar cases in the guiding cases,the identification of reference effectiveness and the homogenization treatment.But for a system,consolidating its construction foundation is the first step in future reforms.Guiding cases entering judicial decisions require not only mature theoretical accumulation and skilled legal methods,but also a well-established procedural mechanism guarantee.In terms of case generation and applicable procedures,how to choose and position is related to the direction and approach of China's future guiding case system construction.This paper intends to make a clear study on the selection criteria,the submission procedure,the review and confirmation,the compilation and release,the abolition and abolition of the guiding cases,as well as the applicable procedures of the judges.It is pointed out that the current one-way and bureaucratic case recommendation mechanism still has In the administrative color,the guiding cases have insufficient openness,the main body of the publication is confusing,the overall proportion of the quotation is low,and the applicable procedures are flawed.The direction of perfecting the case guidance system in China not only needs to focus on the experience of other countries' case guidance system,but also needs to reflect on the existing review system,refine the selection criteria,improve the reporting procedures,and construct applicable incentive mechanisms.Combine prior review with selection and ex post review and revocation to achieve the goal of enhancing the effectiveness of the guiding case and achieving the goals of the system.