Research On The Application Of Procuratorial Guiding Cases

The case guidance system of the procuratorial organ is a special system of the socialist rule of law system with Chinese characteristics,which aims to overcome the limitations of statutory laws,promote judicial justice,and adapt to the new judicial situation.Since the establishment of the system in 2010,as of January 3,2021,the Supreme People’s Procuratorate has issued a total of 24 batches of 93 procuratorial guiding cases.However,the mechanism has been implemented for more than ten years,but the application effect has not reached the level of perfection,and there are still many shortcomings in judicial practice.The purpose of this article is to study the nature of procuratorial guidance cases,current operating conditions and problems,principles of use,inspection methods and standards,and other issues,and propose corresponding improvement measures.The main body of this article is divided into five chapters:The first chapter is a summary of the case guidance system of procuratorial organs,including the concept,reason,distinction from other systems,and comparison of systems from a foreign perspective.This chapter is divided into three sections: The first section mainly introduces the general environment and historical evolution of the case guidance system.Due to the large number of different judgments in similar cases in judicial practice,which damages judicial credibility,a case guidance system has been brewed.The second section is about the functional value of procuratorialguidance.The functional value of procuratorial guidance cases is analyzed.It can not only promote the unity of judicial adjudication,enhance the professional quality of case-handling personnel,but also timely reflect social hot issues and respond to the concerns of the people.The third section is about the comparison between the case system of foreign countries and the case guidance system of our country’s procuratorial organs.Firstly,taking the United States as an example,it introduces common situations of common law-making and precedent application of common law judges.Then it discusses the German precedent guidance system,which is the same civil law system as China in a way,and analyzes the circumstances under which the precedents are legally binding.Later,I introduced the Japanese case invocation system.Although the current system in Japan is not a legal source,it is actually legally binding.Finally,it compares China’s case guidance system with other countries.China’s Guiding Cases are not only different from other countries in terms of applicable rules and coerciveness,but also a dual structure rather than a single judicial organ in terms of the main body of formulation.The second chapter is about the application status and problems of the guiding cases of the procuratorial organs.This chapter is divided into three sections: The first section focuses on analyzing the legality of the guiding cases issued by the Supreme People’s Procuratorate from three perspectives.The first is that the procuratorial system at home and abroad is different,and the functions of procuratorial organs cannot be viewed solely from an international perspective;the second is that the issuance of guiding cases reflects the supervision functions of procuratorial organs;the third is that the Supreme People’s Procuratorate issues guidance cases are clearly stipulated in the "Organization Law" and are powers granted by the Constitution.The second section is about the current status of the application of procuratorial guiding cases.The current case selection reflects the regional characteristics of more sources in developed areas and less sources in underdeveloped areas,the characteristics of areas that are concentrated in criminal cases,and the application characteristics of a relatively low reference ratio in the past 10 years of system implementation.At the same time,the problem of a large number of grassroots prosecutors not understanding the guiding cases and not paying enough attention to it is also more prominent.On the other hand,the management of procuratorial guiding cases by procuratorial organs is also in a relatively chaotic state,and the practices in various regions are quite different.The third section analyzes several problems of the procuratorial case guidance system.On the one hand,the compilation model is fickle,the function positioning is relatively single,the application effect is still weak,and the function overlapping with the trial guidance case is not clear.The application cost of the Procuratorial Guiding Cases is relatively high.On the other hand,due to the lack of incentive mechanism,"applicable" and "not applicable" will not have different legal consequences,resulting in the prosecutorial organs’ unwillingness to learn and unwilling to actively apply.At the same time,procuratorial organs are currently lacking in the training mechanism and assessment methods of guiding cases,which makes the majority of procuratorialpersonnel insufficiently understand the newly issued guiding cases and will not apply or dare to apply.The third chapter is to put forward the principle conception of the application of procuratorial guiding cases.This chapter is divided into three sections: The first section discusses the core principles of the application of the guiding cases of inspection,namely,the legality of crimes and punishments,and the conclusions drawn by the guiding cases cannot violate this principle.The second section explains the relationship between judicial interpretation and guiding cases.In our country’s legal theory,judicial interpretation has a higher effect of direct application.Therefore,when applying procuratorial guiding cases,it must not violate it.The third section focuses on the relationship between trial guiding cases and procuratorial guiding cases.People’s courts and procuratorial organs play different roles in the judicial system.Therefore,the guiding cases issued by each have their corresponding characteristics,so they should be coordinated well.The good relationship between the two can better serve China’s judicial practice.The fourth chapter is about the concrete development of the method steps of the procuratorial organs’ guiding cases.The chapter is divided into three sections: The first section is from the perspective of legal logic,studying how to accurately apply the legal logic method to the reasoning of the case.The second section discusses the applicable links of the guiding cases,including how to compare the plots of the cases,how to use the main points correctly,and how to distinguish between similarities and differences.The third section explains how to test whether the conclusions derived by using relevant methods are in line with human nature and the law,so as to achieve the organic unity of human feelings and the law.The fifth chapter is about suggestions for improving the case guidance system of procuratorial organs.This chapter is divided into two sections: Section one mainly proposes suggestions from the supporting mechanism of procuratorial guidance cases.It is believed that the promotion and training of system implementation should be strengthened and the grassroots level should be strengthened.We should value the assessment of case-handling personnel,the promotion of the selection of higher quality and more representative guiding cases,etc.The second section proposes perfect measures from the applicable rules of procuratorial guiding cases,and gives the guiding cases greater judicial coercion.At the same time,it pays attention to balance the relationship between procuratorial guiding cases and trial guiding cases,and highlights the strengthening of the supervisory function of the procuratorial organ.