Legal Application Of The Guiding Case Of The Supreme People’s Procuratorate

In 2010,the Supreme People’s Court and the Supreme People’s Procuratorate successively promulgated the Provisions on Case Guidance,which marked the formal establishment of the case guidance system in China.The vitality of the case system lies in the application,which is the core of this paper.The necessity of the application of the procuratorial guidance case,the application status,the reasons for the poor application,the application content,the application technology and the application procedure are the core of this paper.The logic is why,what,how to do,both why to insist on the judicial application of procuratorial guiding cases,the problems and causes of the difficult application of procuratorial guiding cases in the judiciary,and how to solve the problems of the difficult application of procuratorial guiding cases.The cases in the case guidance system are instructive cases.Guiding cases are helpful to make up for the limitation of statutory law,unify judicial scale,standardize judicial discretion,enhance judicial identity,improve judicial efficiency,realize judicial justice,and conform to the integration of legal systems.The present instructional case is different from the traditional precedent of ancient China,and also different from the western case system,but has Chinese characteristics.One of the important features is that procuratorial organs which are not judicial organs can also issue guiding cases.The legal basis of guiding cases comes from procuratorial power rather than judicial power,which is the legal basis for the application of guiding cases.However,in judicial practice,whether it is procuratorial documents,typical cases,or news reports,procuratorate work reports,the application of procuratorial guidance cases is not ideal,the quantity and quality of the application is not enough.The reasons are both normative and non-normative.The normative reasons are conservative attitude and abstract law when making the law.When the law was originally formulated in 2010,the effect of the procuratorial guiding cases was "can be referred to",which is different from the rules of the court system and the effect is lower than the court guiding cases "should be referred to".At the same time,it stipulates that part of the procuratorial guiding cases may not be released publicly.The style of the case is varied and not uniform.These provisions were not amended until the normative documents of 2015 and 2019,but there are new issues,such as how the reporting system of deviations from precedents will come into effect.The reasons outside the norm,the changeable case structure makes the judicial personnel do not know how to apply the guiding case;Neither historical tradition nor subjective cognition of procurators distinguish guiding cases from other cases;Compared with court guiding cases,the number of procuratorial guiding cases is not much;The public degree and reasoning process of the procuratorial documents are not as good as the judgment documents of the court.In criminal cases,the principle of "a legally prescribed punishment for a prescribed crime" makes the judicial personnel do not know the relationship between the guiding cases and the law.The key to solve the lack of application of prosecutorial guiding cases is to determine whether there is any guidance in each part under different case structures,that is,how to apply the gentile,basic case,litigation procedure and other non-specific structures.Then,using differentiated techniques,applying cases according to the steps of determining key facts,comparing legal norms and reasoning of procuratorial documents;Finally determine the applicable process,including initiation,departure report,argumentation reasoning,constraint procedures.This paper consists of the following parts:The first part discusses the legal basis of the application of guiding cases in judicial practice.The necessity of the application of procuratorial guiding cases lies in that it is helpful to unify the application of law,standardize the discretion,promote the education of rule of law,and enhance the public trust of the judiciary.At the same time,it can overcome the limitation of written law and reflect the integration of legal systems.At the same time,the legal basis of the application of procuratorial guiding cases is different from that of the western case precedent system,and also different from that of the court guiding cases.This difference is because the procuratorial power in the new era has put forward different requirements for the procuratorial guiding cases.The second part discusses the current situation of the application of the guiding cases.From the perspective of judicial documents and news reports,through the analysis of judicial documents,such as（not）indictment,protest,written decision of procuratorial organs,it shows that the application of procuratorial guiding cases in judicial practice is not satisfactory.Then,the analysis of news reports shows that procurators often refer to procuratorial guiding cases when handling cases,but dare not reflect them in procuratorial documents,which reflects the implicit application of procuratorial guiding cases in judicial practice.The third part discusses the reasons for the poor application of the guiding cases.There are both normative and non-normative reasons.The normative reasons are the changeable style of the procuratorial guiding cases,the lack of popularization of the legal method of analogy of the procuratorial guiding cases,and the incomplete application process.The reasons outside the norms are historical tradition,subjective cognition of procurators and insufficient number of cases.The fourth part discusses how to use each part of the contents of the guiding cases.The content of the structure arrangement of the guiding cases is not uniform and the lack of stability is an important reason for the poor application.In addition to the gist,other parts of procuratorial guiding cases should also be instructive,otherwise the gist will become abstract norms just like the law.How to give full play to the guidance of each part in different types of procuratorial guiding cases is the issue discussed in this part.The fifth part discusses the applicable techniques of the guiding cases.This section discusses how analogical reasoning can be used as a useful complement to deductive reasoning.The commonly used and applicable technology in China is deductive reasoning,which cannot be integrated by itself.The useful supplement is that it can repeatedly verify whether the trial result is fair and reasonable.When trying complex and difficult issues,the parties often use precedents to prove their claims.If the procuratorial organ can use both deductive reasoning and analogy reasoning,the ruling result will be more persuasive.Prosecutors decide whether to apply a guiding case by judging whether there is a difference between the pending case and the guiding case（precedent）in the application of key facts and law.This technique is called the discriminating technique.The applicable steps are to determine the key facts,compare the legal norms,and then present them in the way of reasoning through the procuratorial documents.Supporting procedures of the procuratorial guiding cases.Including initiation procedure,deviation report procedure,argumentation reasoning procedure,constraint procedure.After determining the reasons,applicable methods and applicable techniques for the poor application of procuratorial guiding cases,they should be determined in the form of legal norms.