| the formation and existence of the system of instruction upon request have its special historical background. it is a kind of "non-legal" work practices forming in our country's court system. As a kind of court's work habits, the system of instruction upon request had played an important role, and carryed some positive features: for example, compensating for the lack of law s'and regulations'efficacy, uniforming the application of the law, finding out difficult cases, privoding reasons for the judicial explainations, fighting against the irrational factors such as extrajudicial intervention to fair trial, serving as an espediency of the dilemma of between the justice and the lack of the legal professionals and so on. However, in the background of the judicial reform in our country, the function of the system of instruction upon request gets benefits less than disadvantages. Because it not only has no legal basis and thus legally denies its legitimacy, but also violate the Constitution, that is, destructing the the trial-level system, affecting the the principle of independence of the courts in exerting judicial power and resulting the administrstive relationship between lower and higher court. In this regard, "the second five-year outlines" puts forward a reform program of the system of instruction upon request—its transformation of legal proceedings. It's to incorporate the system of instruction upon request into proceedings with the the existing system of jurisdiction moving .The is divided into four parts: In the first part, the article analyzed the history of the system of instruction upon request and the reason for its formation anf development ; the second part analyzed the o status of the system of instruction upon request under the existing legal system, including the case scope and conditions of system of instruction upon request, how to response the request and the response's effectiveness; the third part introduced why the scholars thought the system of instruction upon request was reasonal, and then questioned it's the rationality for its unconstitutionality; the last part proposed a reform path of the system of instrcution upon request,and analyzed several aspects of reformation. |
