The Application Of Distinguishing Technique In The Guidance System

Case guidance system is an institutional measure to summarize the trial experience,unify the application of law,improve the quality of trial and maintain judicial justice.However,it should be admitted that since the formal implementation of the case guidance system,the actual citation of guiding cases in practice has not achieved the expected effect.This is caused by a variety of reasons,which can be divided into theory and practice.For a system,how to practice in judicial practice is very important.At present,the most cited guiding case is the No.24 guiding case,which causes great controversy.In the first chapter of this paper,taking No.24 guiding case as an example,with the keywords of "No.24 guiding case" and "No.24 guiding case",we searched the judicial documents website and found 67 effective documents.Based on these 67 documents,this paper analyzes the practical application of the guiding case in judicial practice,and roughly sums up the applicable conclusions from the overall data and application types.At the same time,through the analysis of the judgment based on the judgment gist of the guiding case,it is found that in judicial practice,there are many differences between the cases referring to the No.24 guiding case,and it is doubtful that the case can refer to the No.24 guiding case.In addition,in terms of the types of applicable cases,there are cases of expansion of application.There are many problems in the application of guiding cases,this paper attempts to discuss from the perspective of applicable technology.The guiding cases are drawn from the precedent system.There are three kinds of application techniques for precedent under the precedent system,namely,identification,distinction and overthrow.Among these three kinds of techniques,the distinction technique is generally accepted by judges and legal workers and is willing to apply.At the same time,it is also the core of the common law to abide by the precedent principle,which is one and two sides of the relationship with following the precedent principle.In the second chapter of this paper,after clearly distinguishing the types of technology,the main content of distinguishing technology is summarized from the case of "Mc Laughlin v.O’Brien".At the same time,another aspect of differentiation technology is introduced through the case of GEFT v.Australian knitwear Co.,Ltd.After fully understanding the differentiation technology,we need to explore the specific path to apply it to guiding cases in China.The third chapter is to analyze the specific approach of case guidance system in China.The key of distinguishing technology is to judge and extract key facts.For the extraction of key facts,we must focus on the legal facts.We can determine the key facts by looking for the core points of contention,or according to the substantive reasons provided by the "relevant laws" to determine the key facts.In the framework of legal relations,we can determine the key facts according to the specific circumstances of the case.The fourth chapter discusses the extended application of guiding cases.On the basis of the correct use of differentiation technology,there is room for the extended application of guiding cases.