| Case directing system under construction is essentially to systemize and standardize cases that integrate the experience and wisdom of judges, and ascend to a vivid system so as to bring directive cases into full play on justice adjudgement and follow the inevitable rules of justice adjudgement. This thesis takes "case directing system" as research domain and focuses to solve two aspects of issues: the first one is the issue of inevitability and flexibility in theoretical aspect; the second one is the issue of system design and operation rules in practice aspect.This thesis consists of six sections: i.e. introduction, meaning and positioning of case directing system, value analysis on case directing system, comparison of relevant systems between Chinese and western contexts, demonstration investigation on "case publishing system" in our country, establishment of case directing system and perfection of relevant systems in our country.â… .IntroductionThe introduction mainly introduces the selected topic background of case directing system, meaning of research on case directing system, thoughts and measures of research on case directing system. Firstly, the selected topic background of case directing system. On Oct. 26th, 2005, the supreme people's court publicized to the whole society in formal document for the first time that "establishment and perfection of case directing system" was one of the important tasks of justice reform in the next five years. From then on, this justice reform measure was listed in the schedule of people's courts. On this background, this thesis chooses "research on case directing system" as its topic to elucidate the theoretical basis of the establishment and perfection of case directing system and the technical path of system construction. Secondly, meaning of research on case directing system. The establishment of case directing system is on one hand to unify law application standard and direct adjudgement of lower courts; and on the other hand to enrich and develop law theories. Therefore, research on case directing system plays an important part in law theoretical research and legal system practice in our country. Thirdly, thoughts and measures of research on case directing system. This thesis plans to start from the research on ought-to-be aspect of the establishment of case directing system to explain the necessity and flexibility of the establishment of case directing system in our country by means of comparing the inner mechanism and outer formation contexts, as well as demonstration investigation on the existing "case publishing" system in our country. On this basis, it focuses on discussing issues of case directing system of our country in microcosmic aspect, including establishment and application of case directing system, and reform and perfection of relevant systems of justice in our country, etc. This thesis adopts value analysis measure, comparison measure and demonstration measure to illustrate value of the establishment of case directing system, the relation between case directing system and relevant systems in the west, experience and lessons of case publishing system, and pattern design and technical measures of case directing system, etc. This thesis focuses on the explorative research on establishment and perfection of case directing system in our country.â…¡. Meaning and positioning of case directing systemCase directing system is a law application system under the legal framework of statute law as the majority in our country to standardize justice adjudgement and unify justice adjudgement standard by means of exerting the directing function of directive cases that integrate experience and wisdom of justice adjudgement.From the aspect of attribute of case directing system, case directing system is not a system of "enacting laws" by judges, but a law application activity and system. Case directing system is to remind judges through cases to accept case "direction" in case of indistinction of law provisions, so as to apply more proper laws to lawsuit being heard, therefore its function is to interpret and apply laws properly.From the angle of efficacy positioning, directive cases are not legally binding formally, but they take actual effect, and have specific and definite directing function on directing and guiding adjudgement practice, i.e. with actual binding effect.â…¢.Value analysis on case directing systemThe establishment of case directing system in our country has two values in the aspects of substance and procedure. The substance value of case directing system includes: 1. Legislation remedy value. The remedy value of case directing system to statute law mainly includes remedy for defect in legislation rational cognition, remedy for defect in time lag and ossification of statute law, and remedy for defect in language indistinction of statute law. 2. Security value of law. Case directing system remedies uncertain factors of statute law, unifies law application standard, meets people's demands for consistency and continuity of law security through bringing the directing function of directive cases into play. 3. Efficiency value of justice. Case directing system has values of reasonably allocating justice resources, improving effective usage of justice resources and working efficiency of adjudgement from the aspect of system. 4. Equity value of justice. Case directing system can provide a unified yardstick of law application for justice and realize the equity value of same case same adjudgement. 5. Harmony value of law system. Case directing system has an essential justice value of searching for harmony between static law and dynamic law, i.e. self-harmony of law system and harmony between law system and social variance.Case directing system has important procedure value. Case directing system is a law application system with the technical measure of analogism and on the principle of following precedents. It requires that all adjudgement procedures shall follow unique justice tradition and inertia and make adjudgement with intrinsic law standard and measures. Moreover, all litigation parties shall be treated equally. It is this special procedure power that ensures realization of procedure justice of legal adjudgement consistency. As a procedure restricting mechanism, case directing system has functions as follows: case directing system is a procedure mechanism to restrict discretion of judges; Case directing system is a system guarantee to improve the vocational reputation of judges; Case directing system is a systematic basis of unifying justice experience; Case directing system is a procedure mechanism to unify law application standard, etc.â…£.Comparison of relevant systems between Chinese and western contextsThis section reviews the issues in need of reference in the establishment of case directing system of our country by means of analyzing and comparing the inner mechanism and different contexts of case laws in Anglo-American legal system, continental legal system and the traditional legal system of our country.1. Case law system in Anglo-American legal system. The unique inner mechanism of case law system in Anglo-American legal system is that it is a system entirety that centers on justice rationality, depends on justice process for law development, takes following precedents as principle and case application technique as measure. The formation and development of case law system is closely related to social conditions in U. K. of the specific political conditions, the culture tradition of experientialism and dependent and unified justice system, etc.2. Case law system in continental legal system. Case law system in continental legal system originated from the remedy for the defect in statute law. Therefore, the core of case law system is to interpret statute law and ensure unified application of statute law. The systemic attribute of case law system is law interpretation by judges; Case law system is actually binding; there is no specific regulation in laws about the application conditions of precedents in continental legal system; Deduction reasoning is the main application technique of precedents. The formation of case law system in continental legal system largely depends on the following outer contexts: the variation of opinion that code is paramount and statute law is advocated; self-defect in statute law system is the direct condition to hasten the formation of case law system; the relation between the upper courts and the lower courts potentially promote respect to precedents in adjudgement practice.3. Case law system in the traditional context of our country. In Chinese history, precedents as justice practice experience and summary were attached great important from the ancient; however, the position of precedents has not ascended to the same level as statute law. Its appearance is just to guarantee the implementation of statute law more convenient. Therefore, the inner mechanism of traditional case law system in our country is presented as: case law system is a system affiliated to statute law; "Precedent originating from case" is the elementary principle of the formation of case laws; Case law is not directly binding in a strict meaning; The necessary condition of precedent application is no specific regulations in laws. The outer contexts of the formation of traditional case law system in our country are: the thought of rule by men is the ideology for the formation of case law system; Defect in statute law is the legal system context of the formation of traditional case law; State authority structure that the traditional case law depends on is the non-separation of justice and administration; The application technique of precedents is mainly deduction reasoning.Through review on case law systems in the common legal system, the continental legal system and the traditional legal system in our country, we can come to the following revelation: system pattern in different contexts has variety; The kernel of case directing system is "the directing power of case"; Construction of soft environment of case directing system is one of the tasks of the establishment of case directing system.â…¤. Demonstration investigation on "case publishing system" in our countryThis section analyzes the existing problems of "case publishing system" and the revelation brought in through demonstration investigation on history of "case publishing system" and its practical operation.1. History of "case publishing system". Case publishing system in our country went through stages of case publication by "red header documents" and "gazette case publication". In the early stage of the establishment of P.R.C., the supreme people's court paid attention to summarize case experience to direct adjudgement operation of courts all over the country. Especially after the new development stage of legal system in our country in 1978, the supreme people's court issued cases to direct adjudgement operation of courts all over the country according to law application issues put forward in adjudgement operation on the basis of investigation and research. After 1985, the supreme people's court publishes cases in "gazette" periodically to direct adjudgement operation of courts all over the country.2. Actual operation condition of "case publishing system". The original intention of the implementation of "case publishing system" was to effectively direct adjudgement operation of people's courts in different levels all over the country and unify law application standard. However, through investigation on the exiting condition of operation of this system, we find that the effect it takes on practice is limited. Problems are exiting in the present justice practice: different adjudgements in similar cases, repeating adjudgements in a case, mechanical adjudgement of cases, and different law application standard in different local courts, all of which are the powerful illustrations that the operating condition of "case publishing system" is not ideal enough.3. Systematic defects and revelation of "case publishing system". As a system, case directing system shall have such elements of definite restriction mechanism, definite case selection conditions, strict procedure of case selecting, publishing and cleaning, etc. These elements are the premise and basis of the effective operation of case directing system. While at present, "case publishing system" in our country has problems of incomplete systematic elements, imperfect elements and even shortage of certain necessary elements. Specifically speaking, systemic defects existing in "case publishing system" are: insufficiency in definite restriction mechanism of published cases; blur and incorrect case selection standard; quantity of published cases failing to meet the demands of adjudgement practice; imperfect case selection procedure; insufficiency in definite cleaning and changing procedure; insufficiency in relevant supervision and guarantee mechanisms. "One of the revelations offered by "case publishing system" to us is that "case publishing system" provides valuable experience for case directing system: about the dual functions of case establishment and publication subject; about the necessary inspection procedure of cases; about the compiling of adjudgement gist of cases published; periodical and open publication of cases. The second revelation of "case publishing system" is to provide profound lessons for the establishment of case directing system: we shall establish composing elements of directive cases; we shall pay attention to the establishment of procedure elements of case directing system; we shall set up necessary supervision and guarantee mechanism.â…¥. Establishment of case directing system and perfection of relevant systems in our countryThis section expatiates from the following four issues: i.e. realization basis of the establishment of case directing system, establishment of case directing system, application of directive cases and perfection of relevant systems of case directing system.1. Realization basis of case directing system establishment. At present, our country has already had a social opinion basis, legal system basis, practice basis and judge diathesis basis on establishing case directing system.2. Establishment of case directing system. This section mainly analyzes the establishing conditions, procedures and principles of directive cases.(1) The establishing conditions of directive cases are:â‘ In case of existence of certain laws and rules, but with indistinct regulations, judges specify indistinct regulation by means of law interpretation;â‘¡In case of contradiction among laws, judges make selective adjudgement among conflicting rules by means of conflict selection rule;â‘¢In lack of regulations of relevant laws and rules, but with regulations of relevant legal principles, judges apply legal principles to settle case;â‘£In lack of regulations of legal rules or legal principles, judges settle case according to putative principles or legal spirit. The former two conditions are interpretive cases and the latter two conditions are cases to remedy law vacancy.(2) Establishing procedures of directive cases means the steps and measures that shall be followed in the activities of making, reporting, selecting, inspecting, publishing and abolishing directive cases by justice authorities with rights to establish directive cases.(3) The principles of establishing directive cases mainly include: the principle of maintaining unification of legal system; the principle of gradual establishment; the principle of classifying establishment.3. Application of case directing system -Application of case directing system means a justice activity of the people's courts to apply directive cases to make adjudgement in the procedure of case settlement on the premise of lack of statute law and effective remedy. Application of directive cases is different from application path, technique and procedure of general laws and rules.(1) Application phase of directive casesThe core phases in case settlement procedure of judges are truth confirmation, selection of applied regulations, argumentation analysis and drawing conclusion, etc. Case settlement by judges in accordance with directive cases also consists of these several phases. The difference is that the authority basis selected by judges is not from regulations of statute law, but from directive cases. Therefore there are two specifics in procedure aspect: The first one is that in the phase of selecting proper directive cases, besides analysis and definition of the truth and disputes of case to be settled, judges must compare the truth of authority cases with the truth of cases to be settled, and then to make a choice. The second one is in the phase of analysis and argumentation; judges shall adequately demonstrate the relation between the case to be settled and directive cases, and put forward adequate reasons.(2) Application technique of directive casesApplication technique of directive cases is justice reasoning ways or methods. This thesis believes that the characteristics of reasoning application of case directing system in our country are formality in weak meaning and substantiality in strong meaning.The formality of reasoning application of directive cases. The formality basis of directive cases is mainly represented in two aspects: authority and directing power of directive cases. Substantial basis of directive case reasoning is mainly represented into two forms: One is that in the establishment of new directive cases, judges usually remedy legal loopholes according to substantial basis of social policies and moral, etc. and make justice adjudgement; The other is that in the application of directive cases, due to changes in social substantial basis, application of directive cases will lead to a "absurd and unbearable" result, i.e. when substantial basis opposite to the substantial basis of supporting directive cases is more persuasive, it will deviate the formality basis of directive cases, and make reasoning according to the substantial basis of moral, legal purposes and social effect, etc.(3) Application guarantee systemDirective case application guarantee system includes: supervision system, case deviation reporting system, legal vocational education, training and examination system and guarantee mechanism of case directive system, etc.4. Perfection of relevant systems of case directing systemAs a new law application system, case directive system inevitably involves in the relation with the existing legal system. How to harmonize the relation between case directive system and other systems is an issue requires clarifying in practice. Specifically speaking, in order to establish case directing system, it is necessary to carry out corresponding reforms on adjudgement committee, case requesting system, justice interpretation system and case jurisdiction system.
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