Research On The Application Dilemma Of Guiding Case And Its Solution

In order to unify the applicable standards of law and achieve "the same case,the same judgment",China has established a case guidance system.As the core of the case Guidance System,through the empirical analysis of its application in judicial practice,it is found that the operation of the case guidance system has encountered difficulties in the legal soil of China,the effect of its application is far from the expected goal.So,what problems are encountered in the application of the guiding case,what are the root causes behind the problems,and how we should try to solve them are the research purposes of this paper.The main research methods used in this paper are empirical analysis,historical analysis,and comparative analysis.The first part is "explore the source".The author first makes a Longitudinal Study of the historical development of the case guidance system,finding that since ancient China,to modern China,and then to the founding ceremony of the People’s Republic of China,cases or precedents play an important historical role in both legislation and judicature.Then,the author makes a horizontal comparison between the case guidance system and the case law system of the two legal systems.We can see that the case guidance system is different from the case law system of the Civil Law System as well as the case law system of the common law system,but in China’s unique judicial soil bred,is very "Chinese characteristics.".The second part is called "viewing.".Relying mainly on the database of "Beida magic weapon-judicial cases",the author makes a statistical analysis of its application data from two angles: The application of "No.8 guiding cases" and the application of 20 batches of 106 guiding cases as a whole,it is found that the guiding case presents the problem of "little reference" in the judicial practice,and then draws the conclusion that the operational effect of the system is far from the expected conclusion at the beginning of its establishment.The third part is "reflection".In view of the difficulties in the practical application of the guiding cases,after analysis,the author believes that the application of the guiding cases is restricted by the following four aspects: First,the number of the issued guiding cases is small,and the scale effect has not yet been formed,secondly,the effect of "should refer to" is not clear;thirdly,the judge lacks the necessary motivation to apply the guiding case;finally,the guiding case application technology is missing.The fourth part is "suggestion".Based on the above analysis of the application of the guiding cases in practice,we seek to solve the guiding cases of "little reference" to solve the measures.First,set up the incentive mechanism of case discovery,strengthen the rationality of judgment documents,break the bottle-neck of supply and demand of directive cases.Second,to form a consensus on the effectiveness of guiding cases,clear guiding cases have "de facto binding force.".Third,strengthen the system guarantee of guiding case application,such as case retrieval mechanism,external supervision mechanism,etc..Fourth,clear guidance of the case application technology.