A Study On The Judicial Application Of Guiding Cases From The Perspective Of The "Trisection Method" Source Of Law

Guiding cases have been a hot topic in academic research since their birth.As a case guidance system with Chinese characteristics,it is different from the case system of western countries,but a method of law application.According to the theory of "dichotomy",guiding case is a kind of informal source.Based on the status of "informal source",the academic circle has been debating the effectiveness of guiding case,which seriously affects its application rate in judicial practice.Fortunately,in recent years,the theory of "Trisection Method" has gradually emerged,and the classification of "Inevitable law source","The source of natural law" and "Probable source of law" makes the academic circle rethink the status of guiding cases.Under the guidance of "Trisection Method",guiding case has the source of "Natural" status,the effectiveness of disputes also got preliminary solution,"Natural source" redefine the effectiveness of the guiding case for "quasi legal binding force",the binding force between legal binding force and the fact binding force,has a certain force.However,the investigation shows that the application of guiding cases in judicial practice is not optimistic,the number of release is not proportional to the number of trial cases,the implicit applicable cases are too low,causing many difficulties: the supply of guiding cases is insufficient,the supply is only200 cases,and the type is biased;the citation rate is low,this is the most critical problem;the implicit application has always existed and prevailed.There are three main causes of these difficulties: theoretical root,institutional root and thought root.The theoretical root is that the effectiveness of the guiding case is not clear,which is the main reason for the low citation rate of the guiding cases in China;the institutional root is the lack of system of the guiding case,which makes the court judges at all levels cannot flexibly apply the guiding cases.In order to solve the difficulties in practice,the improvement suggestions are as follows: First,build a standardized and diversified legal source system,which relies on the theory of "Trisection Method" and classifies the guiding cases into the queue that can be used as the basis for judgment.Second,establish and improve the guiding case system,first build a multi-level case guidance system,which is the guiding case issued by the Supreme People’s Court,including other cases such as typical cases,bulletin cases,secondly,improve some supporting systems,such as training system,add case training courses judge training;incentive system,spiritual and material incentives for judges.Case retrieval system,optimize the mechanism and procedure of case retrieval.Third,carry out cultural infiltration,integrate analogical thinking and case thinking from daily life,gradually transform into grammar thinking.At the same time,strengthen the judge’s argumentation and reasoning ability,and cultivate the argumentation logic and ability in the work.