Research On Case Guidance System In China

The case guidance system was released in 2010,the supreme people's court "about the regulation of case instruction work"(hereinafter referred to as the regulations)since its establishment has become a hot research topic scholars and judicial workers.Case guidance system is selected according to certain standard and published by the supreme people's court trial in court at all levels of the whole country play a guiding role of guiding cases to refine,statute law statute law in enhanced operational specification judge judicial activities at the same time,in order to promote judicial unified legal system.The nature of the case guidance system is not the case or judicial explanation,but for the legal application standard,to promote unity and justice law applicable to a system,it has constrained the judge discretion and improve the function of the occupational prestige of the judge.Compared to two big legal systems of precedent system,with the case guidance system in our country because of different social,historical and cultural environment and there is a big difference,but two big law system about the precedent system running,is of significance to our country.Specifically,the judge in our country should use a different technique to deal with similar instructional cases before making a judgment on pending cases.Of guiding cases in the sentence "reason"and "obiter dictum" distinction,the judge must strictly abide by the "opinion" without the need to follow "obiter dictum".When the instructional case is not identical to the pending case,the judge must comprehensively analyze the difference between the two cases in law and in fact.Also need in May lead to conflicting conclusions,comprehensive consideration the factors such as national policy,social and moral philosophy to decide which eventually follow instructional cases to render a judgment.We should realize that in the initial stage of the system establishment,there are still many problems,this is mainly embodied in the guiding case decided not pure,security administration to aspects such as selection mechanism.As of March 2017,the supreme people's court issued only 87 instructional cases,which were far from sufficient to meet the requirements of the guiding case for judicial practice.In order to properly solve the above problem,the effectiveness of the instructional cases must be regarded as "shall refer to",namely the judge must follow the guidance cases for similar case judgment,so as to promote the unification of the law applicable to the standard.In the selection process of guiding cases,must remove the security administration,give full play to the judge's independent judgment ability,improve the quality of guiding cases,and expand its quantity.At the same time,it is necessary to abstract the selection criteria of China's guiding case to make it more suitable for the complex and changeable realistic judicial environment.In order to better promote the operation of the case guidance system,should set up "the judge deviation report system",that is when the judge is not carried out in accordance with the guiding case,must make a report to the superior court,don't refer to the reason for sufficient demonstration and explanation.For the management of instructional cases,the provisions on the modification and abolishment of the guidance case should be perfected.Only by solving the above-mentioned difficulties can the new system of the case guidance system be invigorated and developed smoothly.