Research On “Like Cases Were Not Decided Alike” Problem

Distinguishing and identifying "similar cases" is the key to solve the problem of " like cases were not decided alike ".This paper holds that the standard of judging "similar cases" is to compare a pending case with the constitutive elements of the gist of a pre-determined case.If the key facts of a pending case are contained in the constitutive elements of the gist of a pre-determined case,that is,if they are "similar" to the facts described in the constitutive elements of the gist of a pre-determined case,they will be judged as "similar cases".Otherwise,they will be judged as "non-similar cases".This paper holds that the only way to solve the problem of " like cases were not decided alike " is to establish a judicial system based on the principle of similar judgments in similar cases.To establish a judicial system based on the basic principle of similar judgment in similar cases,this paper puts forward the following five measures: first,to establish a mechanism for the trial of similar cases by specially assigned judges;second,to establish a nationwide retrieval and identification system of typical cases;third,to establish a system for compulsory retrieval and evaluation of cases of the court and higher courts before judges make decisions;fourth,to comprehensively implement the system of opening judicial documents according to law;fifth,to establish a judicial restraint system based on the basic principle of similar judgment in similar cases,and promote the Supreme People's Court to make provisions in judicial interpretation of civil,criminal and administrative procedural laws: If the people's court finds that the judgment made by itself or a lower court is in conflict with the gist of the court's previous judgment,it shall retry the case and make a judgment after it is approved by more than two-thirds of the members of the judicial committee,except for the change of relevant laws or the approval by more than two-thirds of the members of the judicial committee of the Supreme People's Court.