Study On The Application Of The Supreme People's Court's Guiding Case

The publication of the first batch of guiding cases of the Supreme People's Court indicates that the application of the guiding cases of the Supreme People's Court is beginning to focus on the theoretical and practical fields.The prominent problems in the application process of guiding cases are mainly manifested in the lack of initiative of judges,the implicit application is obviously more than the express application,there is confusion in the effectiveness distinction of different types of guiding cases,and the applicable methods and techniques are not skilled enough.This paper tries to explain the rationality of institutional reference and non-institutional reference in the application of guiding cases by means of empirical analysis,analysis of judge's personal rationality and reference to extraterritorial jurisprudence system.The effectiveness of multi-dimensional deconstruction of guiding cases in theory finds an appropriate type of standard.Combining with the specific cases of the applicable guiding cases,we can find that the guiding cases will gradually show its "broken window effect" from the perspective of ontology.Through the analysis of the initial conditions of the application of the guiding cases and the internal and external judicial environment,we can highlight the butterfly effect in the legal phenomenon,pay attention to the details of each link of the guiding cases,and grasp the difficulties of the guiding cases in the application as a whole.Most scholars have discussed the validity of the guiding case of the Supreme People's Court and the applicable technology from the perspective of epistemology and methodology.A thorough definition or method innovation to make guiding cases an ideal case.Based on this kind of critical research of "breaking,changing and establishing ",the problems existing in the application of guiding cases seem to be solved only through authoritative legislation.However,the legitimacy of the guiding case lies in the value orientation of its co-judgement and the unified application of the law.What really works is that the judge consciously restricts the discretion,and the logic of applying the guiding case needs certain legal principles to guide it.The key to solving the problem is to analyze the reason why the application of the guiding case is not based on the common law or the civil law.The key is to dredge the applicable resistance ofthe guiding case,connect the main points of the decision and the reason of the decision,and draw out the key facts in reverse,so as to limit the scope of the judge's comparison.We need more patience and wisdom to perfect the application of guiding cases,such as the perfection of incentive and punishment mechanism,the innovation of distinguishing technology and theory,the construction of procedure mechanism,etc.,but we should reveal and clarify the reference method of guiding cases from a positive point of view.