The Predicament And Breakthrough Of The Case Guidance System In China

In 2010,the Judicial Committee of the Supreme People's Court discussed and passed the “Regulations on the Case Guidance System”,which marked the initial establishment of a case guidance system with Chinese characteristics.This is a great judicial innovation based on China's basic national conditions.Based on the difference between the civil case guidance system and the criminal case guidance system,the article mainly focuses on the civil case guidance system.Since the establishment of the civil case guidance system,it has been eight years.From the current application of the civil case guidance system in judicial practice,the system itself and the applicable process have encountered bottlenecks,and the applicable effect is not satisfactory.What problems are encountered in the application of civil guidance cases,and how we apply the guiding cases to the application,is the main problem to be studied in the article.First,the article reviews the historical evolution of the case guidance system,analyzes the initial results of the case guidance system,and affirms the significance of its case guidance system.It also introduces the existing normative documents of the current case guidance system,and describes the overall appearance of the case guidance system from three aspects: the selection mechanism,the structure of the system,and the effectiveness of the norm.At the same time,the jurisprudence system of the United States and Germany is compared.The jurisprudence of the Anglo-American legal system and the civil law system are dependent on the natural results in the judicial process.The validity of the jurisprudence comes from the active compliance of the various levels of courts and the diversity of effectiveness.It is a useful experience that can be learned from China's civil guiding case system.Secondly,through the overall grasp of the release and application of judicial cases in the past eight years,the article analyzes the “insufficient use”,“unwilling to use” and “not good” in the application process of civil guidance cases.Use "etc.The emergence of these problems is mainly caused by theories,the system itself,and practical obstacles.In theory,there are many disputes about the positioning and effectiveness of the civil case guidance system itself,and it is impossible to reach a consensus.This is also a prerequisite for hindering the development of the case civil guidance system.In terms of system,the single examination subject in China's case guidance system leads to insufficient number of civil guidance cases,and the administrative selection mechanism weakens its effectiveness,and the lack of supervision and incentive mechanism makes the judges less motivated to apply the guiding cases.In the applicable level of judicial practice,the lack of applicable legal methods,the judge's trial techniques,the mode of thinking,and the initiative of applying the guiding cases are all difficult problems to be overcome.Finally,the article explores the solution to the dilemma of the system by analyzing the problems in the case guidance system.First,the basic premise of the function and effectiveness of the case guidance system should be repositioned.The civil case guidance system should be focused on the function of “unified law application” to promote the application of guiding cases in practice.In terms of effectiveness,the article believes that although the system has no legal binding force,it has "special de facto legal binding force" and should strengthen its de facto binding force through the trial system itself.Secondly,from the perspective of the shortcomings of the case guidance system,it is possible to increase the supervision and release mechanism of civil guidance cases,strengthen the self-generating mechanism of guiding cases,de-administrative,and establish supervision and incentive mechanisms for civil guidance cases.To improve the system.Third,at the level of judicial application,exploring the legal methods for applying civil guiding cases and strengthening the vocational training for judges to apply guiding cases are effective means to promote the rapid development of case guidance systems.