Title:Judicial Applicability Of Instruction System Of Cases In China

"A mallet is tremendously heavy and law is in people’s heart." Justice, as the last defense safeguarding social fairness,must be fair.Fairness is the highest standard of justice and the eternal survival basis of justice lies in its fairness.Currently what disturbs justice the most is nothing but-disunity of the application of law,the treatments are different for similar cases and legal effect of cases conflicts with social effect.While the unity of the application of law is reflected in the legal cases, it is inevitable to require "consistent judgments to similar cases". There are probably thousands of different cases;however the applicable principles and effects of law must be unified and serious.However in recent years,the frequent occurrence of "different judgments to similar cases" interrogates the fairness of justice over and over again, which is in essence the severe challenge brought out by the constitutional principle of "everyone is equal under the law" and the unity mechanism of the application of law. The judicial credibility is seriously questioned and the rule of law can be believed only when it is a faith, pursued only when it is an ideal and followed and practiced only when it is a system."Different judgments to similar cases" arouses the deep and lasting doubt of the general public on the credibility of justice.How to restrain the passive influence of "different judgments to similar cases" under the premise that the legitimate origin of statutory law maintained?During the course to explore the spirit of the fair rule of law, many scholars have shifted their eyes to the extraterritorial and the case law system based on empiricism is paid more attention.Based on national conditions and the real situation of China’s judicial system,by reasonably drawing on the references of mature experiences of the case law systems of common law countries,actively and steadily exploring the establishment of the case guidance system with Chinese characteristic may be viable.With the judicial requirements that the practice of the rapid development of the society and economy needs to be unified with the application of law,"establish and improve the case guidance system" is highlighted in The Second Five-year Reform of the Supreme People’s Court. Consequently, in November2010, the Supreme People’s Court formulated the normative documents in terms of the selection criteria,the procedure, the publication subject and the publication mode of the guiding cases. The official issuance of Provisions of the Supreme People’s Court on The Work of Case Guidance displays the picture of the case guidance system,and the discussion on the necessity and feasibility of establishing the case guidance system temporarily comes to an end.The implementation of the case guidance system is of great significance to safeguard the unified application of law and realize the predictability of justice as well as the fairness of judgment.The guiding cases play the role of achieving the judicial fairness and justice just in the "visible" way.The publication of a batch of guiding cases is not the advocating of delightful phase achievements but the base point to probe into how to establish and improve its environment in the actual operation phase of the case guidance system.This paper tries to analyze the judicial application of the case guidance system in an all round way,including the following six parts.The introduction is the overview of the paper’s contexts, research status, research significance and research methods.In the first part,in order for an acceptable context environment for the discussion, the author introduces the embarrassing phenomena of "different judgments to similar cases" in the current judicial situation by three well-known classic cases of "different judgments to similar cases".Then the causes of the judicial phenomena of "different judgments to similar cases" are analyzed, on this basis, the phenomena in the period of social transition is rationally examined.Establishing a set of pragmatic and scientific operation mechanism aimed at the unity of the application of law is viable, and "different judgments to similar cases" is docked with the case guidance system.In the second part,the author summarizes the connotation and value orientation of China’s case guidance system.Through analysis on the relationship between the case guidance system and judicial interpretation as well as the special value of the case guidance system for judge’s discretionary power,the value and nature of the case guidance system is positioned, hence the foundation is laid for the following parts. In the third part,firstly, the history foundation of China’s case guidance system is investigated,and the historical development of China’s case guidance system is elaborated.In each historical period,the form of the case guidance exerts influence on people by different means,which is expounded according to the history points,and the development history of the case guidance system is teased out.Secondly,the mature case law system of common law system is investigated and learned through the comparison method,the case guidance system with Chinese characteristics is compared with the western case law system for analysis,and the mature extraterritorial experiences of the western case law is explored. Finally,on the basis of historical research and extraterritorial reference,problems during the development of the case guidance system are introspected.In the fourth part,the author puts forward the idea on the improvement of China’s case guidance system.On macro guidance,China’s case guidance system must be guided by the correct methodology;on micro operation,China’s case guidance system must improve the applicable conditions,refine the operation process and improve the feasible supervision and safeguarding mechanism.The final part includes envisaging the status quo of China’s case guidance system and making prospect of the development of China’s case guidance system.