Study On The Binding Force Of Guiding Cases

The integration trend of common law and civil law system becomes noticeable increasingly.Many countries outside common law system also attach greater importance on precedents in the field of justice and several main countries in civil law system have introduced the case system.Our case guidance system was established under the background of legal system integration.Nowadays,the system really plays a positive role in the aspect of unified legal application since we have been released 9 groups of guiding cases.However,there comes out some issues must be considered among which the most important one is on possession of the binding force.There are a lot of controversies among scholars while the judges hesitate to go on in the confusion of judicial application.The experts and scholars have been discussing that issue and have put forward many valuable theoretical opinions which provide a great theoretical atmosphere for this thesis.On the basis of summarizing and relying on precious research results about this topic and on the foundation of our legal rules and national conditions,the thesis starts research on the case effect of overseas legal systems and then puts forward that the binding force of guide cases should be characterized by the dual nature of the administrative constraint force and quasi legal binding force in order to provides a useful point of views to follow-up research on the topic.There are four parts in the paper:The opening summarizes and analyzed the present situation of case effort in extraterritorial legal system which includes two aspects between case effort of common law and civil law system.Case system and case effort in common law system are not established at the same time;meanwhile their countries pay different strength on precedent principles and case effort.When the case system was introduced into civil law system,their countries generally made some adaptive improvements and gave some obvious changes on confirmation of case effort.This part reveals charm and dilemma of the system through interpretation about cases’ generation,development and bottlenecks.The second part analyzes the similarities and differences between our guiding case and overseas case through their concepts,effort and connotation of the binding force.Then,it switches the comparative perspective to domestic one to lay the discussion foundation to arouse the topic in later chapters.Guiding case is not localization of western’s precedents,but also upgrade of our typical cases.Moreover,the case effort also shows dual natures,so it is not bad to broaden the ideas of the thesis.Thirdly,the author debates the relationship between guiding and binding force,the controversy on the binding force of guiding cases and the carrier of the above binding force,and then interprets the nature of the binding force of guiding cases.Lastly,according to defects of system design and operation difficulties of preliminary trial,this paper provides personal measures and suggestion in order to complement the system and put forward some valuable theoretical assumption..Chinese case guidance system bears the responsibility to make up the inadequacy of law,and guide cases’ binding force deeply influenced the change of trial work mode in the judicial field.There exists some defects can hardly be avoided during the early period of establishment,but it is more important to make a timely response to the problems and remedy them in order to ensure good development of the system.