Several Basic Theoretical Problems Regard To Chinese Guidance System Of Criminal Law

In the last decade, the phenomenon of different verdicts of similar cases occur very often, which led to the questioning of judicial justice。The main reason lies in between the formulation of the law and the judicial interpretation of natural abstract defects, which results in judicial officers lack specific guidance when applicating the law. With respect to the legal sources, the two legal systems in the world learn from each other, which have shown the tendency of getting similar. The Supreme People’s court is based on the socialist legal system with Chinese characteristics, which draw lessons from the two legal systems and based on the judicial tradition of the case. In2010, the guidance system of criminal case has been established to remedy the defects of the abstraction of the rules. However, since the guidance system of criminal case has been enacted, the implementation of the system appears some obvious loopholes,which include the case lack of guidance, emotional difficulties and uncertainty of the legal consequences. All those make the expecting value of applying law consistently can not be achieved. The root of the problems is that we overlooked the periodical characteristic of the system, which causes unclear recognition of theoretical position and legal effect. In the early stage, being consistent with the historical development of Chinese judicial reform and democratic legality, the creation of precedents in China should be conducted step by step. Therefore, the criminal case guidance system must be established gradually. We must focus on unifying thoughts and building awareness gradually and promote the development of the criminal case guidance system through the "bottom-up" model spontaneously. Also, it should be clear that the whole process of operation is in the category of legal application and located in the mechanism of law application. Moreover, the guidance system of criminal case is neither the carrier of the rule nor the source of the law, it just has factual binding. Specifically, the system is used to reveal the process of legal reasoning, indicate the direction of finding rules, and provide the method to implement the rules. However, based on the feasibility of system construction mode, it might be the rules providing mechanism and forming judicial interpretation with legal binding in the near future.