Research On The Formulation And Application Of Chinese Civil Guiding Cases

In consideration of the fuzziness,hysteresis and imperfection of statutes,it is necessary to establish the case guidance system in China.At present,the macro-level researches,such as the construction of case guidance system,have been relatively mature,and further studies on how to write and apply the guiding cases of civil and commercial affairs are needed.The purpose of this paper is to clarify some basic theories of the civil and commercial guiding cases,use the beneficial experience of foreign precedent system as reference,find out the application situation of civil and commercial guiding cases in current judicial practice,and develop recommendations on how to write and apply the guiding cases.Comparative research and empirical study are used in this paper,and some figures are based on the actual application situation of civil and commercial guiding cases in China.This paper is divided into four parts,the basic theory,the empirical research,the writing program,and the applicable procedure.Part one.In this part,the beneficial experience of precedent system in the common law and civil law are used as reference,namely the legal logic,legal technology,reasonable judicatory ground,and the summary,development,perfection of judicial rules.Secondly,the theoretical basis of the guiding cases of civil and commercial affairs in China are studied.The guiding cases is not a part of judicial interpretation,but the important source and factual basis of judicial interpretation,which means the guiding cases is judicial rules.In addition,the functions of the guiding cases are remedying legal loopholes,providing clear normative guidance,defeating the hysteresis of statutory law,and standardizing the discretion of judges.The dominant ideology figures that the guiding cases in China are not legally enforceable,but with the actual binding force.Judicatory ground and judicial rules are included in the scope of validity of the guiding cases.Part two.In this part,the application situation of civil and commercial guiding cases in current judicial practice are analysed.The guiding cases has some deficiencies,for examples,the clear quoted frequency is not high,suitable content is not unified,citing expression is not unified,judges tend to quote in implicit ways.Previously,the above problems are caused by the imperfect laws and regulations.Meanwhile,irregularities on how to write and apply the guiding cases are quite critical.Part three.Civil and commercial judicial documents shall follow the logic structure of the doctrine of adversary.Similarly,civil and commercial guiding cases should follow its special logic structure.Meanwhile,its structure and style shall be guided by its function.The structure and style of civil and commercial guiding cases should be changed to: title,key words,judicial rules,judicatory ground,comments and evaluation,relevant regulations,the basic facts,the results of judgement,relevant notes.This structure tends to highlight the importance of judicatory ground.Judicatory ground should follow the logic structure that produce substantive and procedural rules,and center on the interpretation of subsumption.Judicatory ground is the combination of evidence evaluation and fact-finding(or legal application)that states the judicial rules.The judicial rules come from judicatory ground,and the elements of the judicial rules are important parts of judicatory ground.In consideration of the interpretation of subsumption in judicatory ground,the basic facts and the results of judgement should be brief.At last,the guiding case NO.24 is analysed.Part four.Identification or exclusion,value judgments,citing rules are included in the applicable process.The key of identification is the fact corresponding to theconstitutive elements of the judicial rules set by the guiding cases,namely,the key fact,which is the judgment criterion of similarity.Value judgments need to follow their specific processes,and there are two parts that value judgments need to take into consideration: written and unwritten.The former part includes law,judicial interpretation,the spirit of the law,legal theory and so on.The latter part includes logic and common sense.The successful application of civil and commercial guiding cases requires relevant supporting measures,such as specific related regulations,the establishment of training system,supervision mechanism and applicable service system.