Study On The Judicial Application Of Guiding Cases

All aspects of our society are in the stage of rapid development,all kinds of new types,difficult and complex judicial cases are also emerging,in judicial practice at all levels of the court and judges at different levels of business,in order to ensure the consistency of the application of the law,promote strict justice,the formation of "same case sym" judicial justice results,China has established a case guidance system.Through specific guiding cases,the judge is guided to correctly apply the law,regulations and judicial interpretation in the course of handling cases,and to interpret the case,so as to avoid the phenomenon of judicial injustice of "different judgments in the same case".Because the legal provisions themselves have the characteristics of abstraction and generalization,it is difficult to grasp in the actual trial process,the guiding cases with their real and specific cases and the rules of adjudication,to make up for the limitations of the application of legal provisions.As an important measure of judicial reform in China,the development of guiding cases has been paid attention to by theoretical scholars and judicial practice since the Supreme People’s Court issued the first batch of guiding cases in 2011.Through the comparison between the guiding case and the related concept,this paper thinks that the guiding case is the essence of "case-based judicial interpretation",but the guiding case is aimed at the individual legal and regulatory provisions,and the scope of judicial interpretation is broader.As of January 2020,the Supreme People’s Court has issued 24 batches of 139 guiding cases,and this paper has classified and analyzed the guiding cases issued by the Supreme People’s Court.According to the different interpretation effect of guiding cases on relevant laws and regulations,guiding cases can be divided into three categories,including: interpretation-type guiding cases,public-law-type guiding cases and law-making guiding cases.In addition,the guiding case in its release status quo,there is a small number of publications,the scope of the case is not balanced.The most important reference case is to be applied to judicial practice,and there are still many problems in the process of judicial application of guiding cases at this stage,including the low application rate of guiding cases,the lack of specific application rules cited by judges.In the course of the application of guiding cases,this paper puts forward relevant improvement suggestions,including the compulsory retrieval of class cases and related cases,the establishment of judges training and reward mechanism,the refinement of specific applicable rules and so on.Regarding the application of the current guiding case in judicial practice,this paper takes the guiding case as the research object,according to the data statistics of the "North University Law Treasure Judicial Case Library",makes statistical analysis of the application of the guiding case in the judicial practice,and puts forward some suggestions for improvement according to the judicial application of the guiding case.