The Dilemma And Way Out Of The Judicial Application Of The Supreme People's Court's Guiding Cases

Our country is a statutory law country,judges are used to the long-term application of law and judicial interpretation of the trial mode,the sudden emergence of guiding cases,changed the judge's trial mode and produced a negative attitude in the application.In the face of other problems in the application of guidance cases,there is no mandatory binding force on the effectiveness of guidance cases,which makes the practice of guidance cases more difficult.In order to get rid of this dilemma,it is necessary to find a way in the application,so as to make the guiding cases to a good trend.In view of this,the author starts from the people's court of K district in yunnan province,analyzes the problems faced by the people's court of K district in the application of guiding cases,and puts forward corresponding strategies,so as to further make guiding cases better applied to the trial reference and give play to its value.In addition to the introduction and conclusion,this paper is divided into four parts:The first part of the case guidance system and instructional cases such as defining the basic concept,and by comparing the method in this paper,the characteristics of guiding cases under Anglo-American law system and continental law system,analyzes its function positioning theory frame,break the instructional cases in the practice of the applicable conventionally paper expounds from the perspective of the judge,can clear understanding of the guiding case applied problems.The second part in guiding the practice of case record Numbers,a magic weapon of Peking University,published applicable data and reference guide case cumulative data to compare the most populous province and yunnan province as the background,the situation of field research by K district people's court in yunnan province,talk about K district people's court in instructional cases published in recent years,with reference to guide case trial quantity analysis of the specific situation.This paper discusses the trial mode from the perspective of judge and judge's behavior in Kdistrict people's court.The third part mainly takes K district people's court as an example to analyze the application dilemma of guiding cases and its causes.The difficulties of the application of guiding cases are as follows: the application rate of guiding cases is low,the evaluation of judges on guiding cases is low,the initiative of judges is low,the citation method of guiding cases and the reasoning of judges are not standard,and the guiding cases are out of date.Taking the behavior theory of judges as the analysis tool,the reasons for the difficulties in the application of guiding cases are: the quantity of guiding cases is relatively insufficient,the selection and compilation of guiding cases are not reasonable,the thinking of judgment is different,and the formulation law is becoming more and more perfect in quantity and quality.The fourth part is on the basis of the second part,combined with the third part of the analysis of the guidance case in the application of the reason for the low application rate,further put forward countermeasures.Mainly through: increase the application and promotion of guiding cases,improve the status of guiding cases in the minds of judges,improve the enthusiasm of the application of judges,standardize the way of reference and judge reasoning,regularly clear and compile these aspects to solve the problem.