Research On Judicial Application Of Guiding Cases In China

Case guidance is both a knowledge and a technique.Cases are the "touchstone" of the rule of law.The higher the degree of rule of law in a country,the more importance will be attached to the study of cases.Since the reform and opening up,China's politics,economy,culture and other aspects are developing at an unprecedented speed,and social life is increasingly showing the characteristics of multifarious and extensive.At the same time,due to the vast territory of our country,different places also show great differences in customs and habits and other aspects,the personal professional quality of judges is also uneven,resulting in many cases in practice difficult to solve,this situation for the emergence and development of the case guidance system has laid a good foundation.Was promulgated in 2005 the supreme people's court of the people's court of the second five-year reform program ",first proposed the "set up and improve the case guidance system",in 2010 the supreme people's court issued a "about the regulation of case guidance",marks the case guidance system in China formally established,it is a milestone in the process of our judicial development of a system.It has been nine years since the establishment of the case guidance system.Although this system has attracted much attention from the very beginning and has been continuously explored by the academic and practical circles,there is still some gap between its preset effect and the reality from the perspective of the current situation of its application today.At present,this paper mainly studies the problems encountered in the practice of this system and how to improve it.First of all,this paper uses the method of historical analysis to make a brief summary of the relevant system of case guidance from ancient China to the present.From the perspective of history,it is not difficult to find the shadow of "cases" in Chinese history,which also provides evidence for the rationality of China's current case guidance system.At the same time,on the basis of investigating the historical background of the case guidance system and discriminating the relevant concepts of the case guidance system,the connotation of the current case guidance system in China is preliminarily defined.Secondly,this paper uses the method of empirical analysis to make a statisticalanalysis on the current situation of the application of case guidance system in judicial practice,and analyzes the predicament of the current case guidance system in judicial practice on the basis of the application of current situation statistics.The dilemma is mainly analyzed from two aspects: the first is the problem of the case guidance system itself,including effectiveness,administrative tendency,etc.;the second is the problem in the actual application,including the way of citing,the ability of application is not good,the system is not perfect and so on.The last part of the article is based on the previous part of China's case guidance system to improve some of their own views.For the specific improvement of the system,this paper mainly from four aspects of analysis: first,from the case guidance system itself to improve,mainly in view of the administrative problems,effectiveness of some of their own ideas;Secondly,it puts forward some Suggestions to improve the system from the perspective of practical operation,including applicable standards,methods of reference and applicable technologies.Thirdly,from the perspective of perfecting the supporting system,the author puts forward his own views and focuses on the withdrawal mechanism of guiding cases.Fourth,it is mainly to find out the advantages of the foreign precedent system after a simple comparative analysis,so as to provide certain reference significance for China's case system.More and more attention has been paid to the development of case guidance system in China.Its birth not only represents a new system,but also marks the birth of a new mode of thinking.At the same time,it also plays an irreplaceable role in regulating judges' discretion and realizing judicial justice.Therefore,it is of great significance to perfect the case guidance system in our country,both from the theoretical perspective and from the practical perspective.