The Research Of Property Orientation Of Case Guidance System

"The regulation of case guidance" has been issued respectively by the Supreme People’s Court and the Supreme People’s Procuratorate in2010, it marks the establishment of case guidance system in China. As an important measure of judicial reform, the establishment and perfection of the case guidance system have a richly theoretical and practical connotation, and accordingly it can be researched variously, three-dimensionally and creatively. Since the provisions on the case guidance system is too principled, it leads to a number of urgent problems when it’s carried out, and the position of the property of the case guidance system is a problem which influences the building of the case guidance system. The paper explores the position of the property of the case guidance system deeply with "the provision of the case guidance system" formulated by the Supreme People’s Court. The author will try to research the position of the property of the case guidance system deeply with the method of joining in the discussion of the scholar.There are mainly three points of view on the positioning of the property of the case guidance system in academic circle. The first kind of the view is The Case Theory, and it takes the view of that the prejudication in the case guidance has legal property, and it’s a kind of legal source. The second view is The Judicial Interpretation Theory which regards the guiding case as a kind of judicial interpretation, and it’s mainly supported by Dong Hao. The third kind of the view is The Application of Law Theory, and it takes the view of that the guiding case is a kind of flexible application of the application of law, and it’s mainly represented by Liu Zuoxiang. The author sustains the Application of Law theory and considers that the property of the Case Guidance is a kind of the application of law mechanism. The paper will expound and prove this view through the methods of system inspection and documentary research.The first section is about the definition and investigation of case guidance system in China. This paper firstly expounds the connotation of case guidance system with the understanding and the definition of the connotation of the "case" and "guiding case" and the regulation in "the regulation of case guidance constituted by Supreme People’s Court". And it examines the evolution, the interpretation and the implementation status and foreground of the case guidance system, which elicits the theories argument on the property of the case guidance system. And it’s a basis of the discussion below. The second part is a section that negates The Case Theory. In this part, the author expounds the principle of precedent-following, the sanction of the case law, distinguishing technique and judge-made law in the case law of Anglo-American law system first. And it is concluded that the operation of the case law requires three preconditions:First one is judge-made law, second one is the independence of the judge and the third is that the judge must master the distinguishing technique. However, it is impossible to satisfy three conditions above in our country, especially the right to make the law for the judge, so it can’t be established in our country. The third part is a section of refuting The Judicial Interpretation Theory. To compare the differences between the Case Guidance System and Judicial Interpretation System from the creation of a subject, form and effect, this section explains the connotation of judicial interpretation firstly. Then it interprets that the Case Guidance System can not be replaced by the Judicial Interpretation System from the angle that the case guidance is necessary to make up the abstractness of the judicial interpretation. In the fourth part, the author expresses the view that the property of the case guidance is a kind of the application of law mechanism. To demonstrate that the Case Guidance System is a method of the case-handling by judge, it is analyzed that the process of the case-handling by judge based on the guiding cases which is issued by the Supreme People’s Court. Next, it is instructed that the Case Guidance System is a kind of application of law mechanism by analyzing of the connotation of the word "consult". Then the section draws out the reference to the case law by analyzing the abstraction of the limitations of enacted law origin and proves that the Case Guiding System is a kind of the application of law mechanism from the point of reference. In conclusion of the paper, the author suggests that the property of the case guidance system should be explicitly stipulated by the Supreme People’s Court in order to be helpful to the construction of case guidance system in China.China is a country with statute law typical, and the statute law is the sources of the law. Because of the statute, the case guidance is a method for the judge to handle the case in our country, and its function is to "reference", but its essence is "reference". Therefore, it accords the tradition of statute country for us to regard the property of the case guidance as a kind of application of the law. Because of the limit of the knowledge of the author’s and the space of the article, it is inadequate when the author research the position of the property of the case guidance system in the tradition of statute, and the author also hope the problem will be deeply discussed with the learning and research in the future.