Research On The Effectiveness Of Guiding Cases

The Supreme People's Court Regulation on Case Guidance and The Supreme People's Procuratorate Regulation on Case Guidance have been issued in 2010,which marks China has formally established a case guidance system.The establishment of the system aims to unify the standards of law application through guiding cases,that is,to achieve that same or similar cases gain consistent judgement results by applying guiding cases to different levels of courts and different trial organisations.It has important practical significance.However,since the promulgation of the guiding case,its role has not achieved the expected results.This study believes that figuring out the effectiveness of guiding case is the premise for fully playing its role.This study includes four parts which discuss the effectiveness of guiding cases and related issues.The first part defines the concept of guiding case firstly.Secondly,it sorts out and analyses the views proposed by the legal theory and practice on the characteristics,nature and positioning method of the guiding case effectiveness.On this basis,combining with the current situation in China,the study puts forward the point of views and suggestions on how to locate the nature of guiding cases.The second part selects the cases of two countries applying the anglo-American law system-Germany and Japan,and two countries applying the continental law system-United Kingdom and the United States.It introduces and comparatively analyses the concept of jurisprudence,the level of courts,and the reasons for binding force.This study examines the commonality of the two major legal systems' jurisprudence,and propose that the foreign precedent system has reference significance for the development of China's guiding cases.The third part adopts empirical analysis method to evaluate the effectiveness of the guiding cases.First of all,it collects and count the number of guiding cases applied in the civil judgment documents of Liaoning Province from 2018 to 2019 in order to analyse the current status of the cases' effectiveness.Secondly,the limitation and the reasons of effectiveness are explained,according to the application result of the cases in judicial practice.Lastly,it discusses the impact on the effectiveness of cases,the reasons that guiding cases have not yet played the expected role,etc.The study concludes the findings and opinions in a corresponding way when elaborating the above contents.The fourth part points out the measures to improve the effectiveness of guiding case.Including improving the effectiveness of guiding cases from multiple perspectives,establishing a guarantee mechanism to achieve the effectiveness of guiding cases,strengthening the effect of case effectiveness with case application supervision mechanisms,and enhancing the ability of judges to apply guiding cases,etc.The measures hopefully improve guiding cases continuously as well as enable guiding cases to have a greater impact.