Research On Judicial Application Of Guiding Cases In China

With the rapid development of China’s economy and the increasing diversification of social relations,various kinds of disputes emerge frequently with reality of a large number and difficult to resolve,and the difficulty of deciding cases increases.China has long adhered to the enactment of law as the main body,the legal provisions because of its unique stability and generality will gradually show its shortcomings with the changes in the dispute,and given that judges often have varying levels of knowledge,judges are often difficult to grasp the degree of discretionary exercise for the legal provisions involved in unclear cases or new and difficult cases,so the more timely and relevant precedent judgment is particularly important.Under such social conditions,in 2005,the Supreme People’s Court promulgated the Second Five-Year Reform Outline of the People’s Courts,incorporating the case guidance system into the reform outline and issued the Regulations on Case Guidance in 2010,marking the formal establishment of the case guidance system in China.Under this circumstance,the guiding cases,as an important carrier and the core of the system,have also aroused academic discussion,but the regulations only contain dozens of articles.Even if the relevant implementation rules will be introduced later,the judicial application of the guiding cases is only a general provision,which is still unclear in terms of specific application techniques and actual invocation.The main research content of this paper is to analyze the problems in the judicial application of the guiding cases and explore the measures to solve them.Firstly,the basis of judicial application of guiding cases is studied,from the meaning,effectiveness and application value of the guiding cases themselves,to use the comparative analysis method to analyze the profound connotation of the guiding cases and their binding power from the viewpoints of several scholars.Secondly,the content and technical analysis of the judicial application of guiding cases are studied to discuss the main reference points of the applicable decisions and detailed elaboration of the technical methods to be applied deeply,strengthening the jurisprudential analysis of the method,including similar case identification technology,guiding case citation technology and circumvention technology.Again,the empirical analysis method is used to analyze the data on the actual application of the guiding cases and to explore the problems and causes in practice.Finally,combining the above analysis and the outlook on the development of the system,we fully elaborate the suggestions for improvement: the first is to strengthen the methodological basis of judicial application of the guiding cases,and to analyze in detail the methods of legal interpretation and analogical reasoning that should be applied,so as to provide more theoretical support for practice;the second is to put forward corresponding suggestions in terms of improving the procedural design of the guiding cases,including the recommendation,screening,repair and abolition of the guiding cases;the third is to promote the development and improvement of the guiding cases from the perspective of the relevant safeguard mechanism,focusing on the guiding cases themselves and judges.In recent years,guiding cases have been gradually attached to judicial application,which is of great significance to China,where statutory law is the main law,not only representing the continuous improvement of a new legal system,but also implying the injection of a new legal mode of thinking.Guiding cases will play an increasing role for judges to deal with difficult cases and correctly exercise their discretion.Referring to the application of similar guiding cases in pending cases can be regarded as an application of legal methods,which can effectively fill legal loopholes and promote fair and just judgments.