The Research Of The National Cases Guidance System

On November26th,2010, the Supreme People’s Court announced "The provisions of the Supreme People’s Court regard on the cases guidance"(hereinafter referred to as the "Regulations"), which symbolize the formally establishment of the case guidance system in China. Due to the roughness of the Regulations, the voices of doubt followed. Come with the glad of the establishment of the Regulations also disappoint as to some of the obvious flaws in the Regulations. Since the case guidance system was established, three batches including12guiding cases have been released successively by the Supreme People’s Court to clarify some of the questions in relation to the Regulations, for example, the question of the validity of the case guidance system. However, for other similar problems like the problem of legitimacy, the Supreme People’s Court still did not give a clear answer. From this respect, this article will basically focus on the existing problems of the case guidance system.On the basic of the recently established case guidance system in China, this study is divided into four parts. The first part is to clear the ontology’s points of view, such as the related to the concepts, the cause of the system, the value of the target, and investigation of the effectiveness. Only when the most basic aspects of the system have been fully understood, the advantages and disadvantages could be accurately grasped. The first section focuses on the value’s goal and effectiveness of case guidance system. As this is the core point of the system, we have the reason to put more words at this section. The second part of the article is to compare the case guidance system with some other similar systems, to figure out the differences between them, so as to prove that the case guidance system is an institutional innovation which differed from Chinese ancient legal tradition, the Common law case law system and the Civil law case system. The third part of the article is to investigate the current situation of the case guidance system in China. Firstly, it will analyze "The provisions of the Supreme People’s Court regard to the cases guidance", which respectively unscrambles from the six aspects including building purposes of the case guidance system, creating subject, the sifting criteria, the sources of the guiding cases, making and releasing the programs and the effectiveness of the case guidance system. Secondly, from the normative point, the article will focus on the researches of the structure of the cases and physical content of the guiding cases announced by the Supreme People’s Court. Finally, this research will make retrieval to the current case guidance system defects. Some of these defects are caused by the natural inherent property of the cases, the others are caused by that of the establishment of Chinese guidance system. The fourth part of the article acutely raised the settlement proposals. Some of them were related to the procedural matters, such as the questions to the compilation of the case guidance system; meanwhile, some of them are the researches to the institutional problems, such as the establishment of the supervision and guarantee mechanisms of case guidance system.