The Research Of Instructional Cases On Judicial Guidance Problem

The unity of law is one of the basic attributes of the rule of law, the new naturallaw school of thought representative fuller in his representative work "the morality oflaw", believes that one of the inherent moral law is "pretty"."Same case also sametreat" is a citizen’s most basic requirement for justice. But China’s judicial practicehas exposed the "connection with different sentence" problem in the period of socialtransformation, which damages the credibility of justice, also reduces the legal andjudicial authority. The Supreme people’s court makes a united standard onunderstanding and applying the law, and in2005in five years, the people’s courtreform compendium has put forward to reform and improve the system of trialguidance and legal unity applicable mechanism ", from now the case guidance systemon to the front desk of the judicial reform. On November26,2010the Supremepeople’s court issued "about the regulation of case guidance", marking the formalestablishment of case guidance system. To implement the system, by the end ofFebruary2013, the Supreme people’s court has released four batch of a total of16instructional cases. So, these instructional cases will be in what aspects having theguiding role, this is the start of this writing.This paper specific analysis the guiding case’s three manifestation of judicialguidelines combining guidance cases released by the Supreme people’s court,illustrates the guiding case judicial guidance is a three aspects unified process;Instructional cases of similar cases guiding purpose is to keep the continuity of thejudicial, implementing "accomplice". This paper analyzes the possible problems andcountermeasures in the process of judicial application of the guiding case and intentsto provide intellectual support for improving our case guidance system.This paper introduces the origin of the guiding case judicial guidance in theintroduction, the related question’s research present situation and the researchemphasis.The first part analyzes the evolution of case guidance practice in our country,since the founding of our country; reviewed the practice of the Supreme people’s courtannouncing a typical case and the present situation of the case guidance system;discusses the guiding case making up of the statutory law, standards and guides theright of discretion to the judge; introducing the difference between the cases and cases of Anglo-American law system. The purpose is to illustrate the necessity andfeasibility of guiding cases play a role of the judicial guidance, guide case’s Chinesecharacteristics.The second part analyzes the guiding case’s judicial guidance performance,namely, respectively in the applicable law, determination of the fact and the judgeaspect can have guiding significance for similar cases. In terms of the applicable law,guiding cases reaches constructive interpretation of the law, in terms of the facts, thatsolves the understanding differences and controversy in the judicial practice, unifiesthe judicial discretion in terms of the judge criteria. This part combines the guidancecases released by the Supreme people’s court, Xu ting case and "yunnan" xu ting case,to illustrate instructional cases play a role of judicial guidance in various aspects.The third part analyzes the guiding case may encounter some problems in theprocess of applying the judicial, such as judicial guidance of guiding cases lack ofsecurity mechanism, guide case judicial guidance rigid and conflict with statute law.On the basis of analyzing the problem, that puts forward the corresponding solutions.Case guidance system is a new judicial reform, and need to improve gradually inpractice. Guiding cases giving play to the role of judicial guidance effect relates toachieving the goal of the system.