Case Guidance System Study

Since ancient times,China has had a legal tradition of "judging cases by case." From the Qin Dynasty to the end of the Qing Dynasty,in the long-term historical practice,the formation of the grammar method was the main form.The case was the auxiliary trial mode,and the Confucian traditional rituals were interpreted.a set of legal methods.In the late Qing Dynasty and the Republic of China,due to the input of Western legal culture,the traditional legal system was carried out on a large scale.In the process of such turbulent legal changes,the "case" still occupies an important position.During the Agrarian Reform and Liberation Wars,a large number of jurisprudence was issued to guide legal practice.After the founding of New China,there are also cases related to the publication of judicial practice.By 2011,the Supreme Law officially released the first batch of guiding cases.Since the publication of the Guiding Cases,the academic and theoretical circles have also carried out a series of studies on the selection,release procedures,and abolition of guiding cases,but they have not reached a good consensus.The guiding case is an important legal system.So far,112 guiding cases have been issued.The guiding cases play an important role in safeguarding judicial justice,safeguarding legal authority,and unifying the application of laws.An indispensable part.The differences in legal methodology between legal systems,the alienation of theories in the process of legal transplantation,and the theoretical conflicts in the process of localization of legal resources have led to great controversy in the theoretical and practical aspects of guiding cases.As a key goal of the rule of law reform,the guiding cases have not only caused difficulties in theory,but also encountered great difficulties in the actual judicial practice.What role does the guiding case play in the actual judicial application process? How many guiding cases are applied and what problems apply? This practical problem is rarely mentioned in the research.The author tries to reproduce the current situation of the application ofthe guiding case from the perspective of case analysis and law application,and uses the problem-oriented thinking mode to analyze the problems existing in the judicial application process and propose solutions.Countermeasures.In addition to the introduction,this article is divided into four parts.The first part focuses on the basic overview of the guiding case.Start with the concept of case and guiding case.The case generally refers to an effective judgment made by the people's court in accordance with the law and capable of being tried by the people's courts at various levels.It can be used for research and research by scientific research institutions,and the guiding cases must have strict legal forms,recommendations,selection and release procedures,and corresponding The format and style,in line with the current legal provisions,have a guiding role;secondly,the effectiveness of the guiding case is analyzed.It is considered that the guiding case is not a formal legal source,so it does not have legal coercive force.The binding force of the guiding case is “de facto binding force”;finally,the classification of guiding cases and the distinction between related concepts.From the aspects of legal effectiveness,legal status,and creative subjects,the distinction between guiding cases and jurisprudence,judicial interpretation,and case guidance system is made.The type of guiding cases that are currently published is analyzed,and the guiding cases are divided into laws.Interpretive,vulnerability-filled,and privileged declarations.The second part focuses on the judicial application of guiding cases.Firstly,from the macro and micro aspects,the geographical distribution,trial level,case,case type and reference application of the judicial application of the guiding case are analyzed.Then,in the case of data analysis,the existence of the guiding case is summarized.There are a small number of referee cases and the application is not balanced,the applicable methods are not standardized,and the current application rate is low.The third part focuses on the reasons why the guiding case guidance function is not realized.First,it analyzes the mechanism of the guiding case generation mechanism.It is believed that the guidance case generation lacks legislative support,the guiding cases are few and the selection process needs to be optimized,the guiding case referee text is succinct,and the guiding case information retrieval level is nothigh.The second is the guiding case application mechanism.Aspects were analyzed.The reasons for the lack of judicial application methods for the completeness of the guiding cases,the lack of internal motivation for judicial application,and the lack of judicial supervision mechanisms are considered.Finally,the main body of the guiding cases is analyzed for the reasons for the failure of the guiding case guidance function.The reason for judging the jurisprudence of the law is that the subject lacks the corresponding training.The fourth part proposes a specific solution to the problem.Taking the third chapter as the blueprint for analysis,firstly,it proposes the optimization and guidance selection mechanism from the guidance case generation mechanism,improves the information retrieval level of the guiding case,promptly publishes the guiding cases,and clarifies the guiding case withdrawal mechanism.Secondly,from the aspect of the guiding case application mechanism,it puts forward the application methods of refining guiding cases,establishing the judicial application supervision mechanism of guiding cases,and perfecting the three solutions of guiding case incentive mechanism.Finally,it proposes from the subject of guiding cases.Change the inherent thinking and carry out two training measures in a timely manner.