Research On Similar Cases Of Chinese Civil Guiding Cases

For a long time,the construction of the rule of law in our country has always been based on legislation.At present,our country has set up the law that takes the constitution as commander in chief,the constitutional related law and the civil law and commercial law and other legal departments as the backbone.Laws,administrative regulations,local laws and regulations constitutes of the socialist system of laws with Chinese characteristics.This is a major result of the construction of the rule of law in China.On the basis of this,the system of judicial interpretation in our country is also getting more and more perfect.but even if the laws and rules of judicial interpretation,still cannot completely meet the needs of judicial activities on the rule of law,so the case guidance system arises at the historic moment.On November,2010,The regulations on the guidance of cases was carried out by the supreme people's court,which indicated that the case guidance system finally went from the theoretical level to the practical level.From planning to implementation,the case guidance system has been the high attention of theoretical and practical circles,which not only contains the anticipation of absorb the spirit of case law of Anglo-American law system,more is endowed with the historical mission of unified judicial application,became the basis of the practice down to earth.As the case guidance system develops,on June,2015 the supreme people's court published the provisions on <the regulations on the guidance of cases>implementation rules,put forward the "similar cases similar to judge" the unity of the legal requirements,it is also the core meaning of case guidance system.By early2018,the supreme people's court has issued ninety-two instructional cases in 17 batches,which covers several major department.These guiding cases have begun to have an impact on judicial practice.Urgent problem for us is,however,the case guidance system also lack of enforcement of the judiciary,has not received the training about legal reasoning and legal argument.In particular,how to cognize similar cases in the face of many instructional cases? What kinds of legal reasoning and arguments are required in the identification process? And so on,our judicial officers are not familiar with it.This requires scholars to conduct relevant research from the perspective of theory and practice,and provide guidance for judicial practice.At present,case guidance system in our country is only a preliminary running state,setting up a framework for the basic style,having initial impact of judicial activities.In order to achieve a rapid development,we need to broaden the vision,looking for our weakness in the field of comparative law.Anglo-American legal system,as the origin and practitioner of case law.The principle of precedent has gone through the test of time.In fact,it has developed the factual distinguishing technique of judging the similar cases,which we need to study for reference.In the civil law system,There is also a spontaneous formation of case law system as a complement to statutory law,the design of a certain system to protect the operation of case system.The identification of similar cases in China's case guiding system needs to draw nutrients from the precedent system of the two legal systems and form certain rules or programs.Judging from the actual situation of civil guidance cases in our country,there is a hidden guidance situation because of the lack of legal reasoning support for similar cases,that is the judge does not quote or refer to the guiding case.People worry about the situation,in order to get the healthy operation of the civil guidance case system,the identification of similar cases need to be summarized,to form a certain legal reasoning and demonstration of the technical basis.This paper is divided into four chapters,the first chapter starts with the basic concept of similar cases,introducing the cause and development of civil case guidance in China,it is concluded that "similar cases similar judge" is a key link in the process of case guidance system,then the recognition method of similar cases unclear cause problems were revealed,and introduces the current discussion of similar cases are mainly determined method and point of view;The second chapter focuses on the similar cases in Anglo-American law system recognition method,this paper mainly relates to follow the principle of precedent and the fact that the difference between technology,analyze and summary the mature precedent system.At the same time the case system of main continental law countries like Germany and Japan is discussed;The third part discusses the main reasoning method to judge similar cases in general,which concludes analogical reasoning is the center in judging similar cases of legal reasoning process,and summarizes different types of civil guiding cases in China,combining with the examples to judge similar cases;The last chapter concludes with a view to provide useful suggestions for the development of the case guidance system in China.