On The Construction Of The Unified Judicial Standard For “Civil And Commercial” Similar Cases

In order to solve the problem of similar cases can’t be treated similarly,China has established the case guidance system,and the Supreme People’s Court has issued a series of guidance opinions,but in judicial practice,there are various factors affect the unification of judgment scale,such as anomie of legislative language,the imperfection of the retrieval system of similar cases,the different judgment ideas of judges,the imperfection of case guidance system and so on,and it leads to the phenomenon of different judgments in similar cases.By introducing extraterritorial precedent system,analyzing the principle of precedent and analogical reasoning in the common law system,and studying the compilation of precedents and the system of precedent reporting in the continental law system,drawing on their experience to solve the problem of different judgments of similar cases in our country.The way to achieve the unified judicial adjudication of civil and commercial cases lies in improving the ability of legislative prediction and the standardization of legislative language,so as to make up for the lack of ambiguity and hysteresis of civil law;improving the case guidance system and increasing the total number of guiding cases,be-administration of the guiding case selection process,improving the citation rate of guiding cases;improving the retrieval technology of similar cases,enhancing the construction of legal database,strengthen the application and supervision of similar cases;judges master the method of case analysis and analogical thinking,and form a unified rule of exercise of discretion.