| There are similar cases in the judiciary.Similar cases should be similarly treated.When the parties to different cases find that the cases are very similar,they will want to get similar judicial treatment,which is the embodiment of fairness and justice requirements.The unification of the rule of law requires the unification of the application of law,and the classification of cases is an important way to achieve it.In similar cases and judgements,a similar case is the basis of a similar judgement,and the similar judgement can only be carried out if the similar case is obtained.The process of obtaining similar cases is the identification of them.The identification of similar cases and the similar trial are two steps.Similar cases and judgements need to achieve the unity of the two in order to achieve the desired results.For judicial practice,similar cases and judgements can bring positive meaning and rich value realization to judicial practice.But in the process of it,there are a lot of problems,including how such case was found,how to judge whether a case,all kinds of cases are found by the judge how to select the object,how to achieve similar judgement from the similar case,similar cases and judgements sentenced to will form the majority of errors,etc.,these problems are really affects the process.Some even affect the authority of the judiciary.For the solution of the problem,we need the help of legal methods,that is,similar cases and judgements needs legal methods.In the problem group,the discovery and judgment of similar cases need more attention,because similar case discovery is the primary link of the identification process,and similar case judgment is the key link,both of which are of great significance to the smooth progress of similar cases and judgements.The discovery of similar cases exists in the identification of similar cases.In this article,it only refers to the search process in a narrow sense.It is carried out to find cases that may be similar to pending cases,including a series of subjective activities such as retrieval and screening.In the process of discovery,thinking is the spiritual support,and it is necessary for discovery subjects to have the thinking.Case system and retrieval mechanism of similar cases provide institutional and technical support for them,and guarantee the "quality and quantity" respectively.Similar cases are found to need certain methods,including search,equivalence and comparison.These methods are not opposite,but comprehensive use in order to play the best role.Similar cases and judgements are the comparison between the similarity between the determined case and the pending case of the judge to judge whether it can constitute a similar case in the real sense.To get a real similar case,it is necessary to analyse the formal judgment factors of the decided case and the pending case,including the case facts and the focus of the dispute,and the substantive judgment factors,which including legal norms and legal evaluation.It is necessary to make substantive analysis and comparison on both the factual and legal levels,so as to reach a conclusion on whether the case constitutes a similar case.In the process of similar cases judgement,legal method is particularly important.It should take analogical reasoning as the core,legal interpretation methods as the auxiliary,and interest measurement as the supplement.The application of legal methods makes the judgement conclusion easier to obtain.The discovery and judgment of similar cases need to give play to the subjective initiative of judges,which is related to the subjective value factors of judges.It is a process of the unity of subjective and objective.Only by solving the problem of discovery and judgment of similar cases,can the effect of similar cases be realized,so as to achieve the unification of law application,enhance judicial authority and realize fairness and justice. |
