Research About Judicial Application Of Guidance Case

Case guidance system is an important issue which enjoys a rich theoretical connotation with a great value of implementation requiring operation techniques and methods. It is of great significance in establishing judicial rules, regulating judicial trials, judgment production and even bringing about the organic interaction of jurisdiction and legislation. However, there are only a few studies on the judicial application of case guidance system.Case guidance system is a kind of judicial application system which helps to summarize trial experience, uniform the application of law, improve the quality of trials, safeguard judicial fairness and bring the function of guiding cases in the course of the administration of justice into full play. Guiding cases in the course of the administration of justice has de facto binding force. They can be used as the reasons and the grounds of reasoning in judicial judgments. Due to the lack of legal grounds and related supporting mechanisms, however, it is still premature to use them directly as the grounds of judicial judgments thus need further improving. There exist differences among the case guidance system, case system and precedent system in aspects like concept and tradition.Mainly, case guidance system has four functions. The first one is the function of guidance. This function is realized by issuing guiding cases, so guiding the judges in practice of justice is the prime function of the system. The second function is its regulatory function. Being specific and explicit, guiding cases have de facto binding force upon the judgments of the same or similar cases. The other two functions is its predictive function and leading function.As for the specific establishment of the system, it includes the following aspects:the right to publish guiding cases is exclusively exercised by the Supreme People’s Court; the standards of guiding cases, that is the cases shall be consistent with the widespread concern of the society and comparative law principle, be typical, be of complex and new type, and be other cases with guiding function. The format of guiding cases should include case number, title, cause of action, key words, headnotes, relevant laws and regulations.basic facts, which are composed of the respective allegation of plaintiff and defendant, and the examination of the allegations by court, judgments and the grounds of judgments.The condition of the application of guiding cases includes:lack of specific statutes, or there being specific rules of guiding cases, or there being similar facts of cases. The procedure of it consists of comparison of the facts of cases, selection of guiding cases, citation of rules, and exclusion of the application of the guiding cases. And the safeguard of it includes construction of a departure from te reporting system, supervision system, reward and punishment mechanism, trial supervision system and so on.This thesis is composed of six parts. The first part is the introduction presenting the background and the significance of the research, the current situation,the innovation of the thesis, research methods and structure of the thesis. The second part defines the connotation of guiding case. It introduces the specific meaning of case guidance system, determination of the effectiveness, and the differences among cases, precedents and case guidance system. The third part analyzes the functions of guiding cases, which are guiding function, regulatory function, predictive function and leading function. The forth part is about the establishment of the system which compromises the body of issuing guiding cases, the standards, selection procedure, and production requirements of guiding cases, and the mechanism of updating the cases. The operation of the judicial application of guiding cases is dealt with in the fifth part. It specifies the condition of application of the system that is lack of specific statutes, or there being specific rules of guiding cases, or there being similar facts of cases, the procedure of application of the system that is comparison of the facts of cases, selection of guiding cases, citation of rules, and exclusion of the application of the guiding cases, and the safeguard of the system that is construction of a departure from te reporting system, supervision system, reward and punishment mechanism, trial supervision system. The conclusion is the last part of the thesis.