Guiding Case Study On Judicial Citation Issues

In the face of the widespread phenomenon of "the same case is judged differently"in China's judicial practice,the Supreme People's Court promulgated the "Provisions on Case Guidance work" in 2010,which marked the formal establishment of the case guidance system in China.The original intention of the Supreme People's Court to establish this system is to standardize the discretion of judges through the guiding role of cases,to minimize the judicial living space of "the same case and different judgment",to promote the "the same case and the same judgment" of judges,and finally to realize the uniform application of laws.The realization of the purpose of this system is based on the fact that guiding cases can be invoked by judges in judicial practice.Although guiding case judicial citation plays a normative role in the judicial process of judges,it does not really meet the normative requirements of guiding case judicial citation from the perspective of the overall judicial operation,which is far from the expectation of the system.Therefore,the author will take the empirical analysis of no.15 guiding case judgment as the entry point of this paper to explore how to realize the standardization and optimization of guiding case judicial citation within the current framework of China's judicial system.The first part introduces the origin of the problem,literature review,research methods and research framework.The second part is the theoretical explanation of the judicial citation of guiding cases.First of all,combined with the judicial practice of judges,it is believed that the judicial citation of guiding cases should include not only forward citation but also reverse citation,so as to define the complete concept of the judicial citation of guiding cases and point out its characteristics.Secondly,the necessity,feasibility and practical functions of judicial citation of guiding cases are sorted out and summarized.The third part takes the retrieved judgment of no.15 guiding case as the sample for empirical investigation.Through statistics,sorting,analysis,citation number of judicial quoted in the judgment,judicial quoted standards,the judicial quoted content,the quoted way,the condition of the judge responded five aspects to explore the basic situation of guiding judicial case quoted,points out that the guiding case judicial citing quoted rate is low,to render this tendency,judicial,citing insufficient standard applicability,the judicial quoted content is imperfect,the quoted way is not standard,judicial quoted enforced absence,case-hearing level benefit protection is not obviousThe fourth part inherits the third part,analyzes the causes of the problems in the practice of judicial citation of guiding cases,including the deficiencies in system design,judgment thinking and judicial technology.This paper argues that the main reasons for the problems in the judicial citation of guiding cases are the low level of legal document effectiveness,unclear binding force,imperfect judicial citation rules,the influence of the habitual thinking of judging according to the "law" and the lack of technical trainingThe fifth part is on the basis of deep understanding of the problems and existing reasons of the guiding cases cited in the judicial system,put forward some Suggestions to improve the system of the guiding cases cited.First of all,it advocates to improve the institutional consensus and strengthen the authority of the judicial citation of guiding cases in China,and on this basis,to transform the traditional thinking of judges judgment in accordance with the law.Secondly,the system design of principles and rules should be improved to provide clear behaviors for judges to follow when citing guiding cases.Finally,we should perfect and standardize the judicial invocation of guiding cases from the three aspects of the implementation mode,safeguard mechanism and abolition mechanism.