Study On Some Problems Of The Administrative Case Guidance System In China

With the rapid development of economy in our country, the executive power of the government is expanding promptly. As the administrative affairs are getting more and more complicated, various disputes occur in administrative litigation. The fact that the laws in China are statute laws which cannot be altered at will leads to the problem that the hysteretic nature and the vacancy of statute laws cannot be overcome. As a result, statue laws cannot solve all the problems at administrative trial, so there is no law for judges to follow at the trial. The differences of the judges’level accomplishment and individual quality result in different judgments for the same case at trial, which brings doubts about the uniformity and authoritativeness of the law. The establishment of the case guiding system can effectively fill up the vacancy of statue laws, and stop the abnormal phenomenon of different judgments for the same case, which will promote the justice of judicature. The introduction of the administrative case guiding system will facilitate the on-going judicial system reform, the improvement of judges’ quality and ability, as well as the realization of the fairness and justice of the law. In2005, the Supreme People’s Court enacted Outline of the People’s Court for the Second Five-year-reform, in which the establishment and perfection of the case guiding system was first proposed. On November26,2010, the Supreme People’s Court enacted Regulations about Case Guiding, which says "people’s court of all levels should refer to the guiding cases that the Supreme People’s Court has issued while dealing with similar cases". The regulations signify that the case guiding system take effects in the field of justice, which stands out as one of the significant milestones in Chinese judicial activities.This thesis is based on the practice of the administrative case guiding system, aiming at providing better advice for the better building of the administrative case guiding system in China. The thesis includes six parts. The first part is introduction, in which the back ground, purpose and significance of the administrative case guiding system in China are stated. The second part is an overview of the administrative case guiding system, mainly introducing the meaning of the administrative case guiding system, the case law system of the Anglo-American law and the case law system of the Continental law. The third part discusses the necessity and the value of building the administrative case guiding system. The fourth part expounds the history of the administrative case guiding system in China, including its development in three different historical periods in China. The fifth part analyzes the present situating and four problems of case guiding system in China, the questions:the selection standard, the creation subject, the force of guiding and the low utilization rate. The sixth part The suggestions on the safeguard mechanism for the operation of the administrative case guiding system:improve the selection standard, clear the creation subject, enhance the force of guiding, security mechanism of the administrative case guiding system should be completely built and should be improved.