Research On The Application Of Supreme People's Court Guiding Cases

China's case guidance system is a major institutional innovation for the People's Court to explore judicial justice in its daily trial practice.From a trial practice point of view,the directive cases issued by the Supreme People's Court have been instrumental in filling gaps in the written law,it is of great significance to regulate the right of judges to exercise discretion and to realize the uniform application of written law and judicial interpretation.However,from the overall situation of the reference application of the Supreme Court's directive cases in the trial practice of the courts at all levels and their judges,the reference of the published directive cases by the judges in the trial is not good,the existing problems reflect that the guiding cases have not been fully utilized in the trial practice of the courts and judges at all levels,and their anticipated functions for the trial practice have not been fully realized.There are many reasons for the poor application of the guiding case in the judge's trial practice.The author believes that the fundamental reason is that the effect of the guiding case has not been accurately located.Since the effect of the directive cases issued by the Supreme Court has not been clearly recognized in the judicial practice,they can only be regarded as the reason for the judgment and can not be used as the basis of the judgment in the application of judicial practice,as a result,the courts and judges at all levels are hesitant and wait-and-see in their judicial practice.In addition to the issue of effectiveness,its own formation mechanism is not sound enough,and the specific application in judicial practice lacks an effective technical model,it is also the two key reasons that hinder the effectiveness of guiding cases in the trial work.In order to solve the problems in the application of guiding cases,this paper first takes its effectiveness as the object of study.At present,the prevailing views in China can not accurately locate the effect of the directive cases issued by the Supreme Court in the trial practice,and the directive cases in China are in a legal source status different from the laws,regulations and judicial interpretation,however,it has certain mandatory binding force on how to adjudicate similar cases in trial practice.Therefore,its effect should be a kind of effect outside the formal legal binding force,but also beyond the form of fact binding force.This article calls this kind of legal effect "the reference effect" which is unique under our country legal system.Finally,in order to promote the effective application of guiding cases in the trial practice of courts at all levels of the country,this paper puts forward a few superficial suggestions for the system reform.It mainly includes: first,it explicitly recognizes the unique reference effect of the Supreme Court's guiding case.It is suggested that the guiding cases issued by the Supreme Court should be referred to by the judges at all levels in the trial or execution of similar cases through legislation.On the basis of this law,it is suggested that the guiding case can be cited and written into the judgment document as the basis of the judgment.The second is to improve the formation mechanism of guiding cases.It is suggested that the discovery and reporting of front-line judges should be strengthened in the process of forming guiding cases.On the type of cases,it is suggested to increase the proportion of cases beyond the meaning of the case,so as to realize the effect that publishing a case can solve a batch of similar cases.At the same time,for some cases which have not been quoted for a long time and have no reference or little significance to the trial and execution work,it is suggested that the corresponding abolition procedure should be established so as to promote the continuous improvement and updating of the guiding cases themselves.The third is to innovate the applicable technology of the guiding case.By comparing the case identification and application techniques of the representative countries of the two western legal systems,this paper sums up a reference application model which accords with the trial custom and practice of the judges in China.After the three steps of accurately finding referable cases of guidance,accurately judging the similarity between the cases to be dealt with and the cases of guidance,and adopting certain exclusionary rules to test them,using deductive reasoning and combining the existing legal and judicial interpretation,accurate application of the guiding case.Four is to improve the corresponding supporting system.It includes the system of applying the guiding case explicitly,the guarantee of the judge's rights and the mechanism of investigating the responsibility,the guarantee of the litigant's rights and the system of investigating the lawyer's responsibility.If the judge applies the guiding case in the course of the decision,or other participants in the proceedings put forward the guiding case,but the judge does not apply,the specific circumstances or reasons should be written into the decision.Through the training mechanism for the referential application of judges,as well as the mechanism for the protection of the rights and accountability of judges,to enhance the ability of judges to understand and apply the system of guiding cases in the trial practice,to arouse the enthusiasm of the judges for the reference work of guiding cases and the recommendation and submission work,and to regulate the correct exercise of judges' jurisdiction.The Legal Litigation Rights of litigants and other litigants are guaranteed by the corresponding system,and a system of accountability is established for the cases where the agent or defense lawyer fails to perform his or her duties correctly in the application of guiding cases.