Research On The Effectiveness Of Criminal Guiding Cases Of The Supreme People's Court

The criminal case guidance system is a system in which the Supreme People’s Court has determined and unifiedly issued guidance cases that have a guiding role in the national trial work.The case guidance system is essentially different from the Western case law.It draws on the factors of jurisprudence and develops a unique form in the context of China’s long-standing statute law.In the final analysis,it is a mechanism of interpretation and has no function of making laws.The criminal guidance case is a special judicial case with specific contents and forms selected and issued by the Supreme Court through the prescribed procedures.It is different from the common practice of jurisprudence issued by courts in the Anglo-American legal system countries.The Supreme People’s Court of China,the Supreme People’s Procuratorate and the Ministry of Public Security All have the right to issue guidance cases.This article will only discuss the guiding cases issued by the Supreme Court.Significantly different from ordinary cases,and also different from "instructive cases," which are of special value for the realization of the same case to judge,regulate the discretion of judges,and enhance the experience of judicial activities.The main problem is that the effectiveness is not defined.clear.The effectiveness of guiding cases refers to the impact of guiding cases on courts at all levels when dealing with similar cases in trial activities.Effectiveness issues are related to the generation and application of cases:On the one hand,case generation is the decision of ordinary cases.In accordance with a certain process,the process of determining a guiding case,the generating mechanism concerns the rationality of the guiding case itself.The existing system stipulates the selection of the main body,standards and procedures for the case selection,but the selection mechanism takes the administrative path and the number of cases is too small,which severely limits the influence of the guiding case.The guiding case is a rule system parallel to judicial interpretation.Its proper function is to create rules for adjudication.At present,however,guiding cases mostly reaffirm judicial interpretation and do not play its due role.On the other hand,case application is a guiding case that has been quoted by the court to resolve dispute cases in practice.The applicable mechanism involves guiding cases of external restraint.The application of the "similar case"judgment method of the applicable premise is difficult in application,and there is a lack of case-differentiation techniques;the "shall be referenced" of the applicable rule indicates that the guiding case has de facto binding force,but there is a low invocation rate based on the analysis of the status of invocation and application.The problem of non-standard passive quoted and quoted methods is due to the lack of guarantees for the application of cases.Based on the above issues,it is necessary to explore measures for improving the effectiveness of guiding cases from the perspective of case generation and application:case generation should allow provincial courts to issue guidance cases and strengthen the proper function of the creation rules;case applications should improve similar cases.Judgment methods,strengthen the de facto binding force,and propose the establishment of corresponding protection mechanisms and monitoring mechanisms.