| In order to make up for the limitations of the statute law,just like inherent lag,abstractness and anything else,to solve the problem of "different judgments to similar cases" exposed in the trial of the case,and to ensure the concepts of uniform application of justice and judicial fairness can be finally realized,the Supreme People's Court implemented the case guidance system.Encourage judges to apply guiding cases in the judicial application based on specific circumstances.Since the Supreme People's Court published the first batch of guiding cases in 2011,the case guidance system has been receiving widespread attention from the academic community.With the promulgation of the Supreme People's Court's Regulations on Case Guidance Work,the guiding cases have been improved to a certain degree at the institutional level,and there have been clearer institutional guidelines in judicial practice.However,the guidelines still have obvious characteristics of principle and abstraction,and it is difficult to provide strong guidance to judges on application.And the problems such as insufficient popularity of guiding cases and low quality of judicial applications have not been effectively resolved.Through the research at the institutional and applicable levels of the extraterritorial country case law and China's traditional jurisprudence,we have found many lessons to be learned.In China,we should insist the basis of legislation,combine the good practices of other countries and desirable measures in practice to make further improvements to the case guidance system.Through that way,the judges can form a comprehensive understanding of the guiding cases,and be able to make a right application in the judicial practice.Only in this way can the original intention of uniform application of justice be realized,and the"similar judgments to similar cases" will no longer just be a fiction.This article is divided into five parts.The first part is the introduction,which mainly introduces the research background,research significance,domestic and foreign research reviews,research contents and research methods.The second part discusses the legal position and legal effect of the guiding cases,and clarifying the differences and lessons learned by analyzing the relationship between the guiding cases and the legislation,case law and judicial interpretation.In the third part,combing the relevant statistical data to analyzes the current situation and problems in the application of guiding cases in judicial adjudication.The fourth part analyzes the reasons for the problems of the guiding case in judicial adjudication from the aspects of the operating mechanism of the guiding case injudicial application,the object of the application,the applicable technology,and the subjective will of the judge.The fifth part makes specific recommendations for the improvement of judicial applications of guiding cases in view of the existing problems.Thinking that,at first,the operating mechanism of judicial applications of guiding cases should be improved,including the implementation of weak administration in the selection mechanism,the refinement of the case retrieval mechanism,and the refinement of the case modification and withdrawal mechanism.Second,the provisions of the object to apply should be improved,including the content induction method of referee' keynote should be regulated,and the scope of the object of applications should be appropriately expanded.Third,the applicable technology in judicial application should be firmed up,it includes refining the judgment standard's of cases,strengthening the argument in the application,and implementing the review and evaluation mechanism for the effectiveness of applications.Finally,by strengthening the training of judges,conducting propaganda work,and setting incentive and constraint mechanisms for judges in response to a question that whether the judge appkys the guiding case or not when he should do that,have increased the enthusiasm of judges in judicial applications. |
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