On Analogy Application Of Guiding Cases

As a written law country,statute law is not only the main basis for judges to hear cases in China,but also the formal source of law.However,with the deepening of judicial reform,the case guidance system also began to attract people’s attention.It has been ten years since the publication of the first guiding case.During this period,the relevant academic discussions have never stopped.From the overall structure,expected goal and legal significance of the guiding cases,to the selection,revision and publication,there are academic debates in various fields.Under this circumstances,based on the application area,this paper analyzes the problems caused by the lack of application methods,and puts forward analogical reasoning as a legal reasoning method to solve the problems.Firstly,taking the application status of guiding cases in the past ten years as the starting point,this paper analyzes relevant statistical data.On this basis,it points out that there are some problems in the process of application,such as the small number of cases,different methods,lack of applicable technology and so on.Then,this paper briefly introduces analogical reasoning,the core method of case law application,compares the similarities and differences between case law and guiding cases,introduces the steps of analogical reasoning,and points out that the analogical reasoning should be introduced into the application of the guiding cases.This paper emphasizes that the key of analogical reasoning is the judgment of similar cases.After analyzing the academic points of view,this paper determines the key fact which is the combination of the focus of dispute and the basic facts as the standard in the judgment of similar cases,and demonstrates the steps to determine the key facts.When comparing the similarity of the key facts in different cases,the purpose of norms is introduced to restrict the discretion of judges.Finally,this paper takes the guiding case No.89 as an example,applying the above method to some cases,in order to prove the feasibility of the method.