Research On The Application Of Guiding Cases In Administrative Litigation

As an important institutional innovation in the process of judicial reform in China,the case guidance system has many expected functions such as unifying the application of laws and maintaining judicial justice.As of February 28,2019,the supreme people's court has issued 112 guiding cases.For the case guidance system to achieve its expected function,play an active role in judicial activities,and itsimplementation has become an issue of increasing concern in the academic community.Some studies have found that there are some problems in the application of the guiding cases,and the implementation of the case guidance system is not satisfactory.Under this circumstance,it is of great significance to examine the operation of the guiding case and to find out the problems existing in the case guidance system and to improve the system.Guiding cases have different characteristics in different fields of litigation.This paper takes guiding cases in administrative litigation as the entry point,and 204 referee documents collected online as samples for empirical study.By statistical analysis of the application data,it can be found that the overall application rate of guiding cases in administrative litigation is relatively high.The application frequency varies greatly.Only a few guiding cases are cited more than 20 times,and most cases are cited only in the single digits.The main body of guiding cases is litigation participants,and the number of active citations by judges is less.Referrals to guiding cases are less frequent and the referrals are lower.Through the analysis of the specific application of guiding cases in administrative litigation,it can be found that there are some problems in the understanding and application of guiding cases.The problem of recognition is reflected in the fact that some parties have unclear the concept of guiding cases,and other cases issued by the Supreme People's Court,such as communique cases and typical cases,are mistakenly cited as guiding cases.And in the context that the supreme people's court has made it clear that the guiding cases have the effect of"should be referred to",there are still some lawyers who believe that the guiding cases are not binding in litigation,and there are errors in understanding the effect of the guiding cases.The application of the problem is first reflected in the judge's tendency to refer to the guiding case implicitly rather than explicitly in the judgment document when referring to the guiding case and explaining the reasons.And there are a large number of cases in which the response does not refer to the guiding cases cited by participants in the proceedings.Secondly,the reference of the judge to the guiding cases is mainly based on the key points of the judgment.In the reasoning part of the judgment documents,it is reflected in the reference mode of syllogism.It is suspected that the key points of the judgment are separated from the specific cases of the guiding cases to which they belong,which is regarded as the use of rules.Again,different courts still have different standards on the application of guiding cases in practice,which goes against the objective function of the guiding cases of uniform judgment standards.Finally,participants in the litigation do not quote guiding cases in a standard way.For example,only "relevant guiding cases of the Supreme Court exist" are stated in the litigation reasons,without indicating the specific number,case name or judgment points,etc.,which can indicate the specific information of the guiding cases.In view of the above problems,this paper puts forward three Suggestions.First of all,to increase the publicity of the guiding cases,this measure can not only enable the parties to correctly cite the guiding cases,correct their understanding error;In addition,we can urge judges to refer to guiding cases from subjective and objective aspects and reduce the phenomenon of implicit reference to guiding cases.Secondly,the application mechanism of guiding cases should be improved,which is embodied in clarifying the content of guiding cases,clarifying the effectiveness guarantee of guiding cases in administrative litigation,clarifying the requirements of applying guiding cases and standardizing the quotation form of guiding cases.Finally,the application technology of guiding cases is improved,which is manifested by the use of case differentiation technology of common law system for reference and the optimization of case application technology in China.