| The judicial application of guiding cases can be said to be two aspects of a problem.On the one hand,the feasibility of establishing the case guiding system is discussed in theory,and on the other hand,the technical requirements of the case guiding system are raised from the operational level.Since the publication of the Gazette of the People’s Court in 1985,the judicial application of guiding cases has been the focus of scholars’ attention.The domestic scholars’ discussion on this issue closely centers on the development and improvement of the guiding case system.It can be said that every step forward in the judicial application of guiding cases is the result of the joint action of the theoretical and practical experts and personnel in supporting and admonishing the case guidance system.Judging from the practical effects of the current judicial application of guiding cases,although some achievements have been made,many doubts have also arisen.For example,the mixing of relevant concepts,the judicial application of guiding cases and the typical case of judicial cases are conflated,and even worse,Equating the judicial application of guiding cases with the application of law.The accompanying technical issues such as how to apply guidance cases have also been hot topics of discussion.Whether the guiding case judgment case can be better applied in the context of statutory law is related to the development direction of the case guiding system and whether the purpose of creating the case guiding system can be achieved.At present,the research on the judicial application of guiding cases can be summarized into three aspects.The institutional aspects revolve around whether a case guiding systemshould be established,and how to better establish a case guiding system with Chinese characteristics in the context of China’s statute law;Practical discussion on how to use guiding cases to adjudicate cases to achieve the same judgment in the same case;whether legislative aspects should be given to the legal source status of guiding cases and that courts do not apply the rules of guiding cases to adjudicate.It can be said that the discussion on this issue has always been a hot topic from theory to practice,from procedure to entity.In the form of normative documents,clear regulations on the judicial application of guiding cases are provided.On the one hand,it can greatly facilitate judicial practitioners to apply guiding cases to referee cases,on the other hand,eliminate the concerns of applying guiding cases,and improve guiding cases.Application rate to achieve the purpose of system design.On the contrary,if the relevant application issues are not clearly stipulated,the judicial application of the guiding case is difficult to produce its due practical effect,and even abolished due to its inconsistency with the current judicial system in my country.The nature of judicial application of guiding cases is the best interpretation of its Chinese characteristics rather than copying and copying of other legal systems.Some scholars believe that it is a reference to the case law of the Anglo-American legal system or the case law system of the civil law system.The special form of expression ignores the difference in form and application between the two;some scholars equate the judicial application of the guiding case with the application of the law,and compare the guiding case with the statute on the same level,which confuses the guiding case The relationship between "master and assistant" with the statute law.The judicial application of guiding cases should be an innovative development method of Chinese local culture,not a copy of the relevant systems of other countries.In view of the current integration of the two major legal systems and thestrengthening of the reference trend,the case law and the case system have certain reference significance for improving the judicial application of my country’s guiding cases.The article starts with the concept,defines what is the judicial application of the guiding case,clarifies that it is a judicial system with Chinese characteristics,and compares it with the relevant system to position the judicial application of the guiding case;second,it guides the current practice Analyze the status quo of judicial application of cases and find problems;introduce the provisions or techniques of the case law of the Anglo-American legal system and the judicial system of the civil law system in terms of judicial application;finally summarize how to further improve the judicial application of guiding cases in China to make it better Assist judges in judging cases and achieve the purpose of system design for the same case and the same judgment. |
